Goals: Session 1 (Legal & Evidentiary Challenges

• Obtain contributions on the particular successes and challenges on key L&E issues in different jurisdictions;

• Obtain a deeper understanding on the challenges and capacity needed to overcome these challenges

Legal & Evidentiary Challenges(as identified in 2010 Asian Judges Symposium)

• Standing (Right to sue/Locus Standi)• Expert Evidence • Evaluating Environmental Damages• Sanctions and penalties• Enforcement of judicial decisions• Environmental Alternative Dispute

Resolution

The Major Challenges to Obtaining Expert Evidence

• The difficulty in evaluating two conflicting evidences from experts;

• The high cost of obtaining expert evidences

• The Scarcity of experts in various technical fields

Recommendations to counter the challenges

• Courts could direct all parties experts to discuss the case to elicit an objective discourse on the points of conflict and simplify the issues;

• Courts could draft internal guidelines on assessing credibility of experts to assist judges in zoning in on their expertise;

• Courts could appoint a (independent) committee of experts to study the case and give a recommendation to the court;

• Courts could prepare a register of experts from government scientific and technical institutions who could be tapped to act as experts;

• Court could convene panels and/or division of judges from the court to brainstorm on what questions to ask experts;

• Court could partner with the academic and scientific community to tap scientists and researchers as experts in court cases;

• Scientific and technical matters should be included in the environmental education for judges in their continuing professional development course

• Courts could appoint “in house” technical experts who would advise the court on technical matters

Challenges in Using EADR• Lack of Optimizing the Use of EADR • Lack of skilled third party assistants to

mediate;• Lack of facilities to establish In Court and

Out Court EADR;• Lack of motivation of the more powerful

parties to mediate (lack of equal bargaining power of the parties in conflict)

Challenges on Evaluating Environmental Damages & Deciding Remedies

• The damages caused by environmental pollution are often hidden and accumulative and the effects of pollution are delayed-problems in quantifying the risks and damages of environmental pollution;

• Most jurisdictions do not have environmental remedies (lack of legal tools to address environmental problems and harm)

Recommendations to Meet the Challenges

• Those conducting of EADR be neutral, have appropriate experience, and/ or training in the resolution of environmental disputes and be sensitive to the imbalance of power which often exists among parties to such disputes;

• Courts be adequately resourced to offer court assisted ADR, or have access to adequately resourced external ADR services

Key Questions for Discussion• What are the key challenges and successes different national

judiciaries have faced in achieving effective environmental adjudication;

• How does the jurisdiction deal with standing?• What are the challenges faced in the use of expert and scientific

evidence?• What methods ensure the courts have access to unbiased experts?• What remedies exist and are possible for environmental cases

different jurisdictions including special environmental remedies?• What challenges have there been to enforcement of judicial

decisions on environment?• What are the key challenges and successes different national

judiciaries have experienced for environmental ADR? How can ASEAN courts most effectively use environmental ADR?

Recommendations to Counter The Challenges

• Policy makers should pass new laws providing: appropriate remedies to address environmental harm and; judges wider latitude in imposing remedies in environmental disputes;

• Judges should be challenged to think out of the box and be creative in imposing remedies. In environmental crimes, example of penalties being imposed are the following: (a) community service; (b) environmental training for the offender; © environmental audit ; (d) restoration of or establishment of alternative habitat; (e) publication of the environmental crime and/or penalty; and (f) advising offender’s bank, stock exchange (if publicly listed company) of its offence.