Transnational corporate liability in the era of loss and damages: the case of Asmania et al. v. Holcim

Abstract

As the climate and ecological crisis exacerbates, its effects are increasingly contributing to loss and damage (L&D) around the world, disproportionately affecting those who have contributed the least to climate change and have the least economic capacity to cope with it. Despite this pressing scenario, efforts at the UN level have so far failed to secure sufficient funding for vulnerable states to address L&D. Against this background, attention has been increasingly focusing on litigation targeting public and private for their contribution to climate-related impacts. Civil litigation has been a primary course of action for attempting to attribute responsibility to major private. Yet, despite offering an opportunity to embark on a potential road to reparation, tort-based claims face several procedural, legal and evidentiary challenges, especially when it comes to extraterritorial responsibility. This article presents a detailed analysis of Asmania et al. v. Holcim, the lawsuit filed by four inhabitants of the island of Pari, Indonesia, against the Swiss cement company Holcim for its contribution to climate change and consequently to the financial and non-financial damages suffered by the plaintiffs due to sea level rise on the island. The authors argue that despite the challenges posed by the traditional tort system a new interpretation of Swiss civil law provisions might open the possibility for a civil liability regime able to effectively address the question of climate related L&D in an extraterritorial setting.