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CONVENTIONS THAT MATTER: UNPACKING THEIR INFLUENCE ON TRANSNATIONAL LITIGATION
Setyawati Fitrianggraeni, Eva Fatimah Fauziah, Sri Purnama*
Research Group Arbitration and Alternative Dispute Resolutions
Working Committee Disputes and Transnational Litigation
Legal Lab Team, Anggraeni and Partners
INTRODUCTION
Transnational litigation, often termed international litigation, arises when legal disputes involve foreign elements. These elements pertain to the events underpinning the litigation, the subjects, or the object in question.[1] This kind of litigation offers a resolution mechanism for parties embroiled in cross-border transactions. Although fundamentally rooted in domestic judicial procedures and conducted by domestic courts, the international element is the distinctive factor in transnational litigation. This necessitates a nuanced approach in court proceedings to ensure just outcomes, respecting the legal standards prevailing in the respective countries of the involved parties.
When parties of different nationalities dispute, international litigation becomes one of many options to reach resolution. Distinctly, in terms of number, transnational litigation leans towards international private law rather than its public counterpart. This inclination is because disputes often relate to commerce or assets, situating them within the ambit of international private law.[2] The applicable law in transnational litigation is a fusion of the civil laws relevant to each case which may involve each party’s local law and where a disputed event takes place.
Given that every nation operates under its unique, although often similar, legal framework and litigation procedure, general universal legal stipulations exist to harmonize the differences – international conventions. These conventions, are pivotal sources of international law. Their prominence arises from their widespread use by nations, primary subjects of international law, superseding other legal sources.[3] Thus, understanding the significance and impact of international conventions is crucial when navigating the complexities of transnational litigation.
CONTEXT OF TRANSNATIONAL LITIGATION
Transnational litigation has emerged as an evolutionary legal concept. Historically, disputes were resolved predominantly within the confines of domestic courts. However, given the rise of international individuals, events, and transactions, there is an evident shift towards resolving certain disputes through international litigation, albeit often involving domestic courts.[4]
The litigation landscape is shaped by a symbiotic interaction between two primary elements: (1) domestic doctrines and techniques that, while initially crafted for domestic disputes, have found relevance in international litigation; and (2) an expanding scope of international engagement in litigation, necessitating changes in domestic doctrines, techniques,[5] and practices. Central to this paradigm is the ‘foreign’ or ‘international’ element, underscoring the imperative for internationally applicable legal provisions.
In essence, transnational litigation straddles both domestic and international judicial arenas. This encompasses disputes amongst nations and their denizens, citizens and foreign states, and individuals residing abroad.[6] The intricacies of transnational litigation make it a compelling area of legal research, predominantly due to its multifaceted challenges. Prominent amongst these challenges are the determination of the appropriate forum and applicable law, establishing jurisdictional competence, the enforceability of judgments across different jurisdictions, and addressing extrajudicial dispute resolutions.[7] Addressing these challenges demands an intricate understanding and application of various international legal provisions and sources.
In today’s age, spurred by the meteoric rise of globalisation, borders have become increasingly nebulous. Physical distances, once formidable, are effortlessly bridged through digital communication. This era of globalisation, characterised by surges in foreign investments and burgeoning cross-border trade (both through conventional and e-commerce avenues),[8] underscores the necessity for a robust transnational litigation framework as a conduit for future dispute resolution.
UNDERSTANDING INTERNATIONAL CONVENTIONS
The relationship between international law and international conventions is profoundly intertwined. International law constitutes a framework of legal principles that oversee cross-border relations amongst nations and between nations and other non-state legal entities or amongst these entities themselves.[9] International conventions are a foundational pillar of international law in this legal matrix.[10] To draw an analogy, if international law were likened to the body of a car, then international conventions would be its fuel, vital for its operation.
Distinguishing international conventions from other legal sources, they uniquely encapsulate norms premised upon mutual agreements. Thus, international conventions wield binding authority over the signatory nations, adhering to the ‘pacta sunt servanda’ principle.[11] As the bedrock of international law,[12] these conventions are juridical instruments reflecting the consensus and commitments of states or other international legal subjects united by shared objectives.[13] Apart from conventions, specific standards embodied in, for example, the International Institute for the Unification of Private Law (UNIDROIT) Principles of Transnational Civil Procedures act as touchstones for resolving cross-border trade conflicts and various Model Laws prepared by the United Nations Commission on International Trade Law (for the harmonization of domestic law to enhance international trades.
Within transnational litigation, myriad international conventions serve as pivotal legal anchors. Notably, the Hague Conference on Private International Law in 1893 convened to deliberate upon civil procedural and jurisdictional aspects, culminating in the 1899 Convention on Civil Procedure. Successive conventions followed, including the 1 March 1954 Convention on Civil Procedure and the
Moreover, the Hague Conference gave birth to two consequential conventions: the 2005 Convention on Choice of Court Agreements,[15] which delineates jurisdiction and facilitates the recognition and enforcement of rulings in civil and commercial matters on an international scale where parties have pre-agreed upon a choice of court, and the 2019 Convention on the Recognition and Enforcement of Foreign Decisions,[16] focusing on the recognition and enforcement of foreign verdicts in civil and commercial contexts, augmenting previous conventions.[17] Both conventions epitomise the evolving breadth of long-standing international legal issues.
UNPACKING KEY CONVENTIONS
The Hague Conference is a seminal institution in the annals of international legal arrangements, particularly in transnational litigation. Spearheaded by TMC Asser, an esteemed international jurist, the Dutch government in 1893 convened an international symposium addressing pertinent issues surrounding civil procedures and jurisdiction. Garnering participation from 13 nations, this inaugural gathering—the First Session of the 1893 Hague Conference—delved into salient topics such as matrimony, documentary formalities, inheritance, and civil procedures. This epochal conference culminated in promulgating the Hague Convention on Civil Procedures ratified on 14 November 1896 and subsequently enacted on 23 May 1899.[18] Progressively, the Hague Conference, over ensuing sessions, further fortified its stature. By its Seventh Session in 1951, it was enshrined as a perennial intergovernmental entity under the Organisational Statutes of the Hague Conference.
Regarding transnational litigation, two paramount conventions have recently crystallised: the Convention on Choice of Court Agreements and the Convention on the Recognition and Enforcement of Foreign Decisions. The former, tailored to bolster the efficacy of forum selection in international commercial altercations, aims to infuse an element of legal predictability for enterprises navigating the intricate terrains of transnational commerce.[19] It applies to international scenarios involving exclusive choice of court agreements in civil or commercial matters[20] and extends to non-exclusive jurisdictions, contingent upon reciprocity affirmations by the involved entities.[21] Conversely, the latter convention endeavours to establish a cohesive set of regulations concerning the acknowledgement and execution of foreign verdicts in civil and commercial spheres, facilitating parties engaged in multifaceted trade or investment via judicious collaboration.[22] This convention is pertinent to recognising and enforcing judgements in civil or commercial disputes, encompassing facets like consumer and individual employment contracts.[23]
The introduction of the conventions above undeniably reshapes the landscape of transnational litigation. While multifarious challenges historically besieged transnational litigation, these international conventions have, in many respects, provided resolutions to impending impediments in its execution. Although practical intricacies might not always mirror the convention’s stipulations, such conventions serve as quintessential guideposts for transnational litigation protocols. This is especially pertinent given the escalating proliferation of cross-border endeavours, heightening the propensity for disputes.[24]
IMPLICATIONS OF THE CONVENTION ON TRANSNATIONAL LITIGATION
Engaging in transnational litigation necessitates parties to be au courant with the Choice of Court Agreement Convention stipulations. Primarily, this convention mandates that the designated forum by the disputing entities adjudicate the matter,[25] ensuring a definitive legal pathway for them. Concomitantly, any forum not explicitly chosen by the parties must defer the trial process, prioritising the selected court[26] and thus forestalling concurrent legal proceedings. Moreover, verdicts rendered by the elected forum must gain recognition and execution across all member states,[27] enhancing global legal coherence. This convention is an exemplar, prompting parties to determine their preferred court astutely, which subsequently navigates potential cross-border disputes in international affiliations or transactions. It also engenders legal clarity, ensuring transnational litigations are both efficacious and streamlined.
Furthermore, the Convention on the Recognition and Enforcement of Foreign Decisions postulates that judgements from a court in one member country must gain unassailable recognition and execution in another member state, eschewing any re-examination of the decision. Under this legal instrument, verdicts procured in one signatory nation are seamlessly recognised and executed in others, provided they align with the criteria delineated in Article 6 of the convention.[28] This convention addresses and surmounts a pervasive legal quandary, where international rulings often falter in domestic courts, resulting in non-implementation and subsequent detriment to the winning party.
A case in point elucidating the ramifications of the Court Choice Agreement Convention is Clerides v. Boeing Company. Rooted in the tragic Helios airline Boeing 737-300 crash en route from Larnaca to Athens,[29] this litigation was presented before the Northern District of Illinois Court. The defendant, Boeing, contended forum non-conveniens, asserting the competent courts for the trial were in Cyprus and Greece. The presiding judge dismissed the plaintiff’s plea at the primary level. However, within the Choice of Court Agreement Convention, the doctrine of forum non-conveniens would be rendered nugatory, ensuring plaintiffs are appropriately recompensed. Another emblematic instance is the Nederlandsche Handel Maatschappij NV Agentschap Medan v. Jacob van der Knaap case, where the Supreme Court rebuffed the enforcement of a decree passed by a Dutch Court.[30]
Undoubtedly, these two conventions are transformative in the sphere of transnational litigation. They resonate as instrumental tools furthering the objectives of transnational litigation—primarily, efficacious dispute resolution and yielding commercial advantages for entities engaged in cross-border ventures. Specifically, the Choice of Court Agreement Convention nullifies the applicability of the forum non-conveniens doctrine, which empowered courts to spurn cases if perceived as an unsuitable forum, notwithstanding having jurisdiction over both parties and the matter at hand.[31]
THE FUTURE OF TRANSNATIONAL LITIGATION AND INTERNATIONAL CONVENTIONS
In the rapidly evolving tapestry of global communication and integration, the merits of each transnational litigation convention must be continually assessed.[32] The inexorable march of globalisation begets a corresponding increase in transnational disputes, primarily due to the democratisation of what were once exclusive spheres: travel, commerce, and cross-border trade. With these changes, cross-border disputes have also transitioned from the exception to the norm.[33] Thus, international law must evolve in concert with these shifts, with a particular focus on the rules governing transnational litigation.
Contemporary legal conflicts extend beyond the traditional paradigms of pursuing claims for damages arising from breaches or tortious acts. With its unrelenting advancements in technology and information dissemination, the digital revolution has engendered myriad novel legal challenges. These encompass claims arising from online shopping processed through international litigation forums,[34] the deployment of QR-based payment methods in global transactions, and a plethora of other scenarios. Such challenges necessitate a broader legal approach that amalgamates the principles of civil and international law and the tenets of technology and information law. This dynamic landscape posits fresh challenges for transnational litigation mechanisms, necessitating continual recalibration and adaptation in the years to come.
CONCLUSION
Transnational litigation fundamentally melds the tenets of domestic and international courts. Its appeal as a subject of inquiry lies in its intrinsic complexities and the unique challenges it presents, particularly in an era characterised by unprecedented globalisation and the concomitant surge in cross-border disputes. Moreover, the very genesis of transnational litigation is anchored in international conventions and agreements.
Within the framework of transnational litigation, two pivotal international conventions – the 2005 Convention on Choice of Court Agreements and the 2019 Convention on the Recognition and Implementation of Foreign Decisions in Civil or Commercial Cases – underpin its legal operationalisation. These conventions have been transformative in navigating and resolving the multifaceted challenges traditionally beleaguered transnational litigation. Furthermore, they possess the potential to achieve the overarching objectives of this mode of litigation, foremost among which are effective dispute resolution and the assurance of advantages to commercial entities engaged in transborder business pursuits.
As globalisation intensifies and transnational activities burgeon, the relevance and intrigue of transnational litigation as a field of study are set to amplify. With cross-border transactional conflicts becoming an inevitable byproduct of this progression, there is a pressing need for expanded scholarly literature and contributions. Such contributions should span an interdisciplinary spectrum, enveloping legal considerations and the intricacies of politics, economics, societal dynamics, and the interplay of cultures between nations.
BIBLIOGRAPHY
Book
Darusman YM, International Convention (Implementation and Supervision), (Jakarta: Pascal Books, 2022).
Hardjowahono BS, Fundamentals of Private International Law, (Ed. 1, Bandung: PT Citra Aditya Bakti, 2013).
Kusumaatmadja M and Etty R. Agoes, Introductory International Law, (Bandung: PT Alumni, 2003).
Mauna B, International Law: Understanding Roles and Functions in the Era of Global Dynamics, (Bandung: PT Alumni, 2010).
Suwardi SS and Ida Kurnia, International Treaty Law, (Jakarta: Sinar Graphic, 2019).
Thontowi J and Pranoto Iskandar, Contemporary International Law, (Bandung: PT Refika Aditama, 2006).
Journal
Burbank SB, “The World in Our Courts” (1991), 89(6), Michigan Law Review, < https://scholarship.law.upenn.edu/faculty_scholarship/1221/ >, accessed 21 July 2023.
Chong A, “Recognition and Enforcement of Foreign Judgments in Asia”, Asian Business Law Institute: Research Collection School of Law, < https://core.ac.uk/download/pdf/155249444.pdf >, accessed 1 August 2023.
Herrup P and Ronald A. Brand, “A Hague Convention on Parallel Proceedings” (2021), 63, Harvard International Law Journal Online, < https://scholarship.law.pitt.edu/cgi/viewcontent.cgi?article=1481&context =fac_articles >, accessed 25 July 2023.
Parrish AL, “Personal Jurisdiction: The Transnational Difference”, 59(97), Virginia Journal of International Law, < https://www.repository.law.indiana.edu/facpub/2855/ >, accessed 2 August 2023.
Rushing DG and Ellen Nudelman Adler, “Some Inconveninet Truths About Forum Non Conveniens Law in International Aviation Disasters”, 74(2), Journal of Air Law and Commerce, <https://core.ac.uk/download/pdf/147637504.pdf>, accessed 30 July 2023.
Silberman L, “Transnational Litigation: Is There a “Field”? A Tribute to Hal Maier” (2006) 39(5) Vanderbilt Journal of Transnational Law < https://scholarship.law.vanderbilt.edu/vjtl/vol39/iss5/7/ >, accessed 20 July 2023.
Slaughter DAM, “A Global Community of Courts”, (2003), 44(1), Harvard International Law Journal, < https://www.jura.uni-hamburg.de/media/die-fakultaet/personen/ albers-marion/seoul-national-university/course-outline/slaughter-2003-a-global-community-of-courts.pdf >, accessed 20 July 2023.
Tryson JL, “The Hague Conferences”, 20(6), The Yale Law Journal, < https://www.jstor.org/stable/784505 >, accessed 25 July 2023.
Whytock C, “Transnational Litigation in US Courts: A Theoretical and Empirical Reassessment”, (2002), 19(1), Journal of Empirical Legal Studies, < https://papers.ssrn.com/sol3/papers.cfm?abstract_id =4046224 > accessed 22 July 2023.
Regulation
Statue of the International Court of Justice.
Convention of 30 June 2005 on Choice of Court Agreements, Hague Conference on Private International Law.
Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, Hague Conference on Private International Law.
Websites
Bhumika Khatri “The Effectiveness of the Hague Convention on Choice of Court Agreements in Making International Commercial Cross-Border Litigation Easier – a Critical Anlyss” (2016) LAW 525: International Commcercial Contract, <https://core.ac.uk/download/pdf/41340334.pdf>, accessed 5 November 2023.
HCHH, “Choice of Court Section” <https://www.hcch.net/en/instruments/conventions/specialised-sections/choice-of-court#:~:text=The%20Convention%20of%2030%20June,parties%20to%20international%20commercial%20transactions.>, accessed 5 November 2023.
Steve Adams, “Hague Judgments Convention 2019 to enter into force” Baker McKenzie, <https://globallitigationnews.bakermckenzie.com/2022/09/20/hague-judgments-convention-2019-to-enter-into-force/>, accessed 5 November 2023.
[1] See, Linda Silberman, “Transnational Litigation: Is There A “Field”? A Tribute to Hal Maier” (2006) 39(5) Vanderbilt Journal of Transnational Law, 1429, <https://scholarship.law.vanderbilt.edu/vjtl/vol39/iss5/7/>, accessed 20 July 2023.
[2] Mochtar Kusumaatmadja and Etty R. Agoes, Introductory International Law, (Bandung: PT Alumni, 2003) 1-2.
[3] Yoyon Mulya Darusman, International Convention (Implementation and Supervision), (Jakarta: Pascal Books, 2022) 91.
[4] See , Dean Anne Marie Slaughter, “A Global Community of Courts”, (2003), 44(1), Harvard International Law Journal, 192, <https://www.jura.uni-hamburg.de/media/die-fakultaet/ personen/albers-marion/seoul-national-university/course-outline/slaughter-2003-a-global-community-of-courts.pdf>, accessed 20 July 2023.
[5] Stephen B. Burbank, “The World in Our Courts” (1991), 89(6), Michigan Law Review, 1459, <https://scholarship.law.upenn.edu/faculty_scholarship/1221/>, accessed 21 July 2023.
[6] Dean Anne Marie Slaughter, Loc.Cit.
[7] Bayu Seto Hardjowahono, Fundamentals of Private International Law, (Ed. 1, Bandung: PT Citra Aditya Bakti, 2013) 170.
[8] Christopher Whytock, “Transnational Litigation in US Courts: A Theoretical and Empirical Reassessment”, (2002), 19(1), Journal of Empirical Legal Studies, 5, <https://papers.ssrn.com/sol3/papers.cfm?abstract_id =4046224> accessed 22 July 2023.
[9] Jawahir Thontowi and Pranoto Iskandar, Contemporary International Law, (Bandung: PT Refika Aditama, 2006) 4.
[10] Statue of the International Court of Justice, Article 38(1).
[11] The principle of pacta sunt servanda, namely that promises are binding according to the law for those who make them. It is said to be fundamental because this principle is the basis for the birth of agreements, including international agreements and underlies the implementation of agreements in accordance with what was agreed upon by the parties. Without agreed promises there will be no agreement. Yoyon Mulya Darusman, Loc.Cit.
[12] Sri Setianingsih Suwardi and Ida Kurnia, International Treaty Law, (Jakarta: Sinar Graphic, 2019) 1.
[13] Boer Mauna, International Law: Understanding Roles and Functions in the Era of Global Dynamics, (Bandung: PT Alumni, 2010) 82.
[14] Hague Convention of 1971 or The Convention on the Recognition and Enforcement of Foreign Judgements in Civil and Commercial Matters aimed to facilitate the mutual recognition and enforcement of judicial decisions across national borders. However, it suffered from a lack of ratification due to its narrow scope, complex requirements, and the existence of more favourable bilateral treaties between countries, leading to its limited adoption and effectiveness in the international legal landscape. See, Bhumika Khatri, “The Effectiveness of the Hague Convention on Choice of Court Agreements in Making International Commercial Cross-Border Litigation Easier – A Critical Analysis” (2016) LAW 525: International Commercial Contract, <https://core.ac.uk/download/pdf/41340334.pdf>, accessed 5 November 2023.
[15] The 2005 Convention on Choice of Court Agreements has concluded on June 30, 2005, under the auspices of the HCCH and it entered into force on October 1, 2015, following the requisite number of ratifications. See, HCHH, “Choice of Court Section” < https://www.hcch.net/en/instruments/conventions/specialised-sections/choice-of-court#:~:text=The%20Convention%20of%2030%20June,parties%20to%20international%20commercial%20transactions.>, accessed 5 November 2023.
[16] The 2019 Convention on the Recognition and Enforcement of Foreign Decisions is the latest instrument to come out of the Hague Conference on Private International Law ‘s “Judgments Project,” and will enter into force following the accession of the European Union (excluding Denmark) and the ratification by Ukraine on 29 August 2022. The Convention will therefore take effect for the EU and Ukraine on 1 September 2023. See, Steve Adams, “Hague Judgments Convention 2019 to enter into force” Baker McKenzie, < https://globallitigationnews.bakermckenzie.com/2022/09/20/hague-judgments-convention-2019-to-enter-into-force/, accessed 5 November 2023.
[17] See, Paul Herrup and Ronald A. Brand, “A Hague Convention on Parallel Proceedings” (2021), 63, Harvard International Law Journal Online, 1, <https://scholarship.law.pitt.edu/cgi/viewcontent.cgi?article =1481&context=fac_articles>, accessed 25 July 2023.
[18] James L. Tryson, “The Hague Conferences”, 20(6), The Yale Law Journal, 472, <https://www.jstor.org/stable/784505>, accessed 25 July 2023.
[19] Convention of 30 June 2005 on Choice of Court Agreements, Hague Conference on Private International Law, Article (1).
[20] Ibid.
[21] Ibid., Article (22).
[22] Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, Hague Conference on Private International Law.
[23] Ibid., Article (1).
[24] Paul Herrup and Ronald A. Brand, Loc.Cit.
[25] Convention on Choice of Court Agreements, Op.Cit., Article (5).
[26] Ibid., Article (6).
[27] Ibid., Article (8).
[28] See, Convention of 2 July 2019 on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, Op.Cit., Article (4).
[29] Don G. Rushing and Ellen Nudelman Adler, “Some Inconveninet Truths About Forum Non Conveniens Law in International Aviation Disasters”, 74(2), Journal of Air Law and Commerce, <https://core.ac.uk/download/pdf/147637504.pdf>, accessed 30 July 2023.
[30] See, Adeline Chong, “Recognition and Enforcement of Foreign Judgments in Asia”, Asian Business Law Institute: Research Collection School of Law, 99, <https://core.ac.uk/download/pdf/155249444.pdf>, accessed 1 August 2023.
[31] Ibid.
[32] James L. Tryson, Loc. Cit.
[33] Austen L. Parrish, “Personal Jurisdiction: The Transnational Difference”, 59(97), Virginia Journal of International Law, 103, <https://www.repository.law.indiana.edu/facpub/2855/>, accessed 2 August 2023.
[34] Christopher Whytock, Loc. Cit.
*Setyawati Fitrianggraeni holds the position of Managing Partner at Anggraeni and Partners in Indonesia. She also serves as an Assistant Professor at the Faculty of Law, University of Indonesia, and is currently pursuing a PhD at the World Maritime University in Malmo, Sweden. Additionally, Eva Fatimah Fauziah is former Senior Associate in the International Arbitration and Litigation Group and also Head of Legal Lab at Anggraeni and Partners, and Sri Purnama is Head of Legal Lab.
BIBLIOGRAPHY
Books
Adolf H, Aspek-Aspek Negara dalam Hukum Internasional, (Bandung: Keni Media, 2011)
Bram D, Hukum Perubahan Iklim: Perspektif Global dan Nasional, (Malang: Setara Press, 2016)
Husin S, Hukum Internasional dan Indonesia tentang Perubahan Iklim, (Depok: Raja Grafindo Persada, 2016)
Jessup P, Transnational Law, (New Haven: Yale University Press, 1956)
Silalahi D, Hukum Lingkungan: Dalam Sistem Penegakan Hukum Lingkungan Indonesia, (Bandung: P.T. Alumni, 2001)
Soekanto S, Faktor-Faktor yang Mempengaruhi Penegakan Hukum, (Jakarta: PT Raja Grafindo Persada, 2008)
Journals
Dubois SM, “Climate Change Litigation”, Encyclopedia Entries, Oxford Public International Law, (2023), https://opil.ouplaw.com/display/10.1093/law-mpeipro/e3461.013.3461/law-mpeipro-e3461#law-mpeipro-e3461-div1-5, accessed 23 August 2023
Fakana ST, “Cause of Climate Change: Review Article”, Global journal of Science Frontier Research, (2020), 20(2), 8-10, https://www.researchgate.net/publication/342452772_Causes_of_Climate_Change_Review_Article, accessed 22 August 2023
Ganguly g, Joana Setzer, and Veerle Heyvaert, “If at First You Don’t Succeed: Suing Corporations for Climate Change”, (2018), 38(4), Oxford Journal of Legal Studies, 13, http://eprints.lse.ac.uk/89702/7/gqy029.pdf, accessed 25 August 2023
Heyvaert V and Leslie Anne Duvic Paoli, “Chapter 1: The Meanings of Transnational Environmental Law”, Handbook Chapter, 2020, 7, https://www.elgaronline.com/display/edcoll/9781788119627/9781788119627.00009.xml, accessed 21 August 2023
Hunter Dand James Salzman, “Negligence in the Air: the Duty of Care in Climate Change Litigation”, (2007), 155(6), University of Pennsylvania Law Review, 1775, https://scholarship.law.upenn.edu/penn_law_review/vol155/iss6/8/, accessed 26 August 2023
Peel J and Jolene Lin, “Transnational Climate Litigation: The Contribution of The Global South”, 2019, 113(4), American Journal of international Law, 726, https://doi.org/10.1017/ajil.2019.48, accessed 22 August 2023
Savaresi A and Joana Setzer, “Right-based litigation in the Climate Emergency: Mapping The Landscape and New Knowledge Frontiers”, (2022), 13(1), Journal of Human Rights and The Environment, 12, https://doi.org/10.4337/jhre.2022.01.01, accessed 23 August 2023
Sembiring ZA and Audi Gusti Baihaqie, “Litigasi Perubahan Iklim Privat di Indonesia: Prospek dan Permasalahannya”, (2020), 7(1), Jurnal Hukum Lingkungan Indonesia, 124, https://doi.org/10.38011/jhli.v7i1.215, accessed 25 August 2023
Slaughter DAM, “A Global Community of Courts”, (2003), 44(1), Harvard International Law Journal, <https://www.jura.uni-hamburg.de/media/die-fakultaet/personen/albers-marion/seoul-national-university/course-outline/slaughter-2003-a-global-community-of-courts.pdf>, accessed 21 August 2023
Toussaint P, “Loss and Damage and Climate Litigation: The Case for Greater Interlinkage”, (2020), 30(1), Review Of European, Comparative, and International Environmental Law, 16, https://doi.org/10.1111/reel.12335, accessed 22 August 2023
Regulations
United Nations, The human Right to A Clean, Healthy and Sustainable Environment, General Assembly of the United Nations, No. A/RES/76/300.
Law Number 32 of 2009 Concerning Environmental Protection and Management.
[1] Daud Silalahi, Hukum Lingkungan: Dalam Sistem Penegakan Hukum Lingkungan Indonesia, (Bandung: P.T. Alumni, 2001), 4.
[2] Deni Bram, Hukum Perubahan Iklim: Perspektif Global dan Nasional, (Malang: Setara Press, 2016), 1.
[3] Veerle Heyvaert and Leslie Anne Duvic Paoli, “Chapter 1: The Meanings of Transnational Environmental Law”, Handbook Chapter, 2020, 7, https://www.elgaronline.com/display/edcoll/9781788119627/9781788119627.00009.xml, accessed 21 August 2023.
[4] Huala Adolf, Aspek-Aspek Negara dalam Hukum Internasional, (Bandung: Keni Media, 2011), 252.
[5] Dean Anne Marie Slaughter, “A Global Community of Courts”, (2003), 44(1), Harvard International Law Journal, 192, <https://www.jura.uni-hamburg.de/media/die-fakultaet/personen/albers-marion/seoul-national-university/course-outline/slaughter-2003-a-global-community-of-courts.pdf>, accessed 21 August 2023.
[6] P. Jessup, Transnational Law, (New Haven: Yale University Press, 1956), 113.
[7] Jacqueline Peel and Jolene Lin, “Transnational Climate Litigation: The Contribution of The Global South”, 2019, 113(4), American Journal of international Law, 726, https://doi.org/10.1017/ajil.2019.48, accessed 22 August 2023.
[8] Dean Anne Marie Slaughter, Loc.Cit.
[9] Sandrine Maljean-Dubois, “Climate Change Litigation”, Encyclopedia Entries, Oxford Public International Law, (2023), https://opil.ouplaw.com/display/10.1093/law-mpeipro/e3461.013.3461/law-mpeipro-e3461#law-mpeipro-e3461-div1-5, 17.
[10] Patrick Toussaint, “Loss and Damage and Climate Litigation: The Case for Greater Interlinkage”, (2020), 30(1), Review Of European, Comparative, and International Environmental Law, 16, https://doi.org/10.1111/reel.12335, accessed 22 August 2023.
[11] See, United Nations, The Human Right to A Clean, Healthy and Sustainable Environment, General Assembly of the United Nations, No. A/RES/76/300.
[12] Law Number 32 of 2009 Concerning Environmental Protection and Management, General Explanation.
[13] Daud Silalahi, Op.Cit., 253.
[14] Ibid.
[15] Annalisa Savaresi and Joana Setzer, “Right-based litigation in the Climate Emergency: Mapping The Landscape and New Knowledge Frontiers”, (2022), 13(1), Journal of Human Rights and The Environment, 12, https://doi.org/10.4337/jhre.2022.01.01, accessed 23 August 2023
[16] Selemon Thomas Fakana, “Cause of Climate Change: Review Article”, Global journal of Science Frontier Research, (2020), 20(2), 8-10, https://www.researchgate.net/publication/342452772_Causes_of_Climate_Change_Review_Article, accessed 22 August 2023
[17] David Hunter and James Salzman, “Negligence in the Air: the Duty of Care in Climate Change Litigation”, (2007), 155(6), University of Pennsylvania Law Review, 1775, https://scholarship.law.upenn.edu/penn_law_review/vol155/iss6/8/, accessed 26 August 2023
[18] See, Geetanjali Ganguly, Joana Setzer, and Veerle Heyvaert, “If at First You Don’t Succeed: Suing Corporations for Climate Change”, (2018), 38(4), Oxford Journal of Legal Studies, 13, http://eprints.lse.ac.uk/89702/7/gqy029.pdf, accessed 25 August 2023, Also see: Philippines Reconstruction Movement and Greenpeace Southeast Asia v. Carbon Majors (2015) Case No CHR-NI-2016-0001
[19] Ibid.
[20] Ibid., 14.
[21] Huala Adolf, Loc.Cit.
[22] Geetanjali Ganguly, Joana Setzer, and Veerle Heyvaert, Op.Cit., 21.
[23] Soerjono Soekanto, Faktor-Faktor yang Mempengaruhi Penegakan Hukum, (Jakarta: PT Raja Grafindo Persada, 2008), 8.
[24] Zefanya Albrena Sembiring and Audi Gusti Baihaqie, “Litigasi Perubahan Iklim Privat di Indonesia: Prospek dan Permasalahannya”, (2020), 7(1), Jurnal Hukum Lingkungan Indonesia, 124, https://doi.org/10.38011/jhli.v7i1.215, accessed 25 August 2023.
[25] Annalisa Savaresi and Joana Setzer, Op.Cit., 13
[26] Zefanya Albrena Sembiring and Audi Gusti Baihaqie, Loc.Cit.
[27] Sukanda Husin, Hukum Internasional dan Indonesia tentang Perubahan Iklim, (Depok: Raja Grafindo Persada, 2016), 59
[28] Ibid., 128
[29] A clean, healthy and sustainable environment is a basic human right, See: United Nations, The Human Right to a Clean, Healthy and Sustainable environment, General Assembly of the United Nations, No. A/RES/76/300.
[30] Zefanya Albrena Sembiring and Audi Gusti Baihaqie, Op.Cit., 126
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