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‘The battle for sustainability won’t be won in the civil courts’

Fossil Free against KLM on greenwashing, municipalities against Chemours on PFAS discharge, climate cases against Shell and ING Bank… There are many examples of recent civil lawsuits on sustainability. But does climate litigation in the civil courts actually have an effect?

Sustainability through liability? Don’t get your hopes up. That is the title of Branda Katan’s inaugural lecture on 22 March. Katan is Professor by Special Appointment of Corporate Litigation at Leiden Law School and a partner at Amsterdam law firm Stibbe. In her work as a lawyer, she is seeing an increasing number of civil cases aimed at making companies act more sustainably. A trend that she says will continue. ‘My impression is that interest groups and NGOs are frustrated because politicians are too slow in introducing stricter legislation. So they are reaching for other tools, one of which is civil litigation.’

Attention is an important goal of lawsuits

Katan will argue in her inaugural lecture that civil law is not suited to getting businesses to act more sustainably. This is because the lawsuits are slow and the results only say something about one specific case. ‘Civil litigation focuses on something specific that has gone wrong in the past in one company. The world will only become more sustainable if a measure is future-oriented, widely supported and implemented in multiple places. A civil case is not such a measure.’

Yet there is no lack of enthusiasm for such cases. For complainants, it is often not so much about winning a case. ‘With climate litigation, you grab attention –  media attention – and, at least that is the hope, you instil fear in other companies. So interest groups are using it to try to bring about behavioural change.’

As KLM’s lawyer in the Fossil Free case, Katan expects to receive the verdict two days before her inaugural lecture. ‘How topical do you want to be’, she laughs. She is pleased that with her appointment at Leiden University she is once again working with students and doing research alongside her job as a lawyer. ‘The combination really appeals to me. In the two master’s courses I teach, students appreciate how I can offer that bit extra from the practice.’

Research programme on sustainability via liability

Taking a helicopter view and talking about this is how Katan sees her inaugural lecture. ‘What is the current state of affairs? But I will also show that there is a whole research programme on this topic.’ She is supervising two PhD candidates. Lotte Gunneweg is researching parent company liability for subsidiaries having violated sustainability obligations. And Sofia de Jong is looking at how the threat of liability affects directors’ behaviour.

As for Katan, she plans to delve into developments relating to civil cases on environmental obligations. ‘There are lots of procedural issues that I deal with daily as a lawyer, so it’s really interesting to research this more.’

She is looking forward to 22 March. ‘I get to speak for three-quarters of an hour on something that fascinates me. I can bring together people who mean a lot to me personally and people whom I am in professional contact with. What more could you want?’ And speaking of sustainability: she will be wearing her father’s old gown on the day.

Text: Margriet van der Zee
Photo: ANP

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