A Malaysia-Netherlands Dialogue: Private Sector Approaches to Sustainability - Strategies behind Climate Lawsuits

 Date: 15 April 2026 

Remarks by:

• His Excellency Jacques (Jaap) Werner, Ambassador of the Kingdom of the Netherlands to Malaysia

• Jennifer Thien, Council Member, Climate Governance Malaysia (CGM)

Keynote Speaker:

• Professor Tim Bleeker, Associate Professor of Climate Law, Vrije Universiteit Amsterdam

Panelists:

• Kiu Jia Yaw, Founder, Kiu & Co; Chair, Bar Council Environment and Climate Change Committee

• Elizabeth Wu, Transnational Governance Consultant; International Dispute Resolution Lawyer

Moderator:

• Datin Professor Dr. Maizatun Mustafa. Associate Professor in Environmental Law, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia 

The second session of the Malaysia-Netherlands Dialogue webinar series examined the evolving landscape of climate litigation and its implications for corporate governance, public policy, and accountability. Titled “Strategies behind Climate Lawsuits,” the session brought together legal practitioners, academics, and policymakers to explore how litigation is increasingly shaping climate action across jurisdictions.

Opening the session, His Excellency Ambassador Jacques Werner situated climate litigation within the broader framework of the Paris Agreement, which established legally binding obligations to limit global temperature rise. He emphasised that these obligations have catalysed the rise of legal instruments to enforce accountability, noting that both governments and corporations are no longer passive actors but are increasingly subject to judicial scrutiny. While climate litigation remains in a relatively early stage globally, His Excellency framed it as an essential mechanism for driving compliance and clarifying responsibilities, pointing to early jurisprudence in jurisdictions such as the Netherlands as indicative of how courts are beginning to shape expectations of both state and corporate conduct.

In her welcoming remarks, Jennifer Thien underscored that climate change is no longer a distant risk but an immediate and accelerating reality. She characterised climate litigation as both a risk and a signal for businesses: a risk due to increasing legal exposure, and a signal of rising stakeholder expectations for transparency, accountability, and credible transition strategies. She highlighted the growing role of courts as arenas where science, policy, and corporate responsibility intersect, and referenced emerging developments in Malaysia, including youth-led legal action on forest conservation, as evidence that these global trends are beginning to take root locally. In doing so, she raised critical questions about how prepared Malaysian companies are for this evolving legal environment and whether existing governance structures are sufficiently robust.

Professor Tim Bleeker’s keynote outlined global climate litigation trends, noting around 3,000 cases worldwide—predominantly in the United States, with growing activity in Australia and Brazil. While about three-quarters of cases target governments, an increasing share is directed at corporations across sectors such as finance, retail, and manufacturing. He stressed that impact is not defined by volume alone, citing jurisdictions like the Netherlands where fewer but more influential rulings have shaped global jurisprudence. Climate litigation spans framework cases, project-specific challenges (e.g. fossil fuel developments), and emerging areas like greenwashing and anti-climate litigation, including SLAPPs. With success rates of 50–55%, he highlighted litigation’s role in not only securing legal outcomes but also shaping norms, influencing behaviour, and clarifying responsibilities across public and private actors. 

A key highlight of his presentation was the Milieudefensie v. Shell case, which demonstrates both the promise and the constraints of climate litigation. While the court affirmed that corporations have a responsibility to address climate change grounded in human rights, it declined on appeal to impose a specific emissions reduction target, citing the difficulty of translating global carbon budgets into firm-level obligations. This reflects what Professor Tim described as a “crisis of responsibility,” where the need for action is clear but the allocation of responsibility remains contested, involving complex judgements about equity, sectoral differences, and intergenerational trade-offs. He concluded that despite these uncertainties, three forces will continue to drive corporate climate action: the physical inevitability of climate impacts, the growing link between sustainability and business resilience, and increasing legal pressure through regulation, disclosure requirements, and litigation risks.

The panel discussion extended these global insights to both Malaysian and transnational contexts. Kiu Jia Yaw highlighted that Malaysia is entering a new phase of climate governance, marked by the emergence of climate-related litigation and evolving legal frameworks such as the National Action Plan on Business and Human Rights (NAP BHR). He pointed to recent lawsuits against government ministries - including a case challenging the handling of a company’s carbon-neutral advertising claim and a youth-led legal action on forest conservation - as indicative of growing public demand for accountability. He observed that the responses of government agencies in such cases, often characterised by fragmented responsibility and institutional deflection, reflect deeper systemic challenges in governance.

He argued that Malaysia’s traditional development narrative which is prioritising economic growth with environmental trade-offs is increasingly being challenged by a rights-based approach to climate governance. This shift is supported by emerging legal foundations, including the interpretation of Article 5(1) of the Federal Constitution as encompassing environmental rights, as well as regional developments such as the ASEAN Declaration on environmental rights. In this context, climate litigation serves not only as a legal tool but as a mechanism for reframing responsibility and exposing gaps in coordination. He emphasised that businesses must move beyond a compliance mindset and proactively integrate human rights and environmental considerations into their operations, noting that companies that delay action until regulatory compulsion risk both legal vulnerability and strategic disadvantage.

Elizabeth Wu provided a transnational perspective, focusing on the strategic and procedural complexities of cross-border climate litigation. She emphasised that litigation strategy involves careful consideration of jurisdiction, applicable law, standing, and procedural rules such as discovery and legal privilege, all of which can significantly influence the feasibility and outcome of a case. For example, differences between civil law and common law systems in document disclosure can either enable or constrain access to critical corporate information, while also affecting litigation costs and risks for civil society actors.

She also highlighted the growing use of Strategic Lawsuits Against Public Participation (SLAPPs) by corporations to deter civil society action, noting their chilling effect on climate advocacy. She referenced high-profile cases involving environmental organisations such as Greenpeace, where litigation has been used to impose significant financial and legal burdens. In response, emerging frameworks such as the EU Anti-SLAPP Directive are beginning to provide defensive mechanisms, allowing organisations to challenge the enforcement of abusive foreign judgments, although such protections remain limited in scope and are not universally accessible.

Elizabeth further discussed the challenges of aligning different legal regimes, particularly in the context of investor-state dispute settlement, where legacy investment treaties may constrain governments’ ability to implement climate policies. She cited examples of energy companies challenging regulatory restrictions on fossil fuel activities, illustrating the tension between investment protection and environmental objectives. In this context, she emphasised the importance of strategic coordination across jurisdictions, as well as the role of litigation not only in securing legal outcomes but in shaping broader governance norms and influencing corporate behaviour.

The discussion also addressed key strategic questions in climate litigation, including the trade-offs between targeting high-impact defendants and establishing broadly applicable legal precedents. Panellists noted that some cases are pursued because they represent clear violations of existing law and offer a higher likelihood of success, while others are strategically chosen to advance broader normative debates by forcing major actors to articulate their positions on contested issues. Even where such cases do not succeed, they can play a critical role in shaping legal discourse and influencing future litigation strategies.

A recurring theme was that litigation should be viewed as part of a broader ecosystem of climate action rather than a standalone solution. Panellists emphasised that pre-litigation engagement, stakeholder dialogue, and regulatory reform are often equally important, and in some cases more effective, in driving behavioural change. Litigation, in this sense, functions as one tool among many, capable of reinforcing but not replacing broader governance and policy efforts.

In their closing reflections, panellists emphasised that climate litigation is an important but not singular driver of climate action, and that its effectiveness depends on how it interacts with other mechanisms such as regulation, market incentives, and stakeholder engagement. They highlighted that proactive governance and early engagement with stakeholders can significantly mitigate litigation risks, while also strengthening long-term resilience. At the same time, legal processes were recognised as a critical forum for confronting scientific realities and clarifying responsibilities, particularly in contexts where political or regulatory action may be slow or contested. Ultimately, sustainable business practices were framed not merely as a compliance requirement, but as a strategic necessity in an increasingly complex and uncertain operating environment.

The session reinforced a central message: climate litigation is not merely a legal phenomenon but a systemic force reshaping the relationship between governments, businesses, and society. As the legal landscape continues to evolve, its influence will extend beyond courtrooms, driving deeper transformations in governance, accountability, and corporate strategy

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