How do private law institutions of developing countries differ from those of developed countries? A common view is that the legal systems of the Global South are often outdated, failed transplants of Global North models, or plagued by enforcement challenges. This book project offers a different perspective by focusing on legal innovation and adaptation in the Global South. We examine how countries in the Global South have embraced legal doctrines and solutions that deviate from approaches that currently hold the status of orthodoxy in richer countries, and pursue distinct and potentially broader public policy objectives or reflect different values, in response to conditions that are commonplace in developing countries. Our analysis points to reasons why the legacy of colonialism, limited fiscal capacity, economic dependence on richer countries, and macro-economic volatility may encourage lawmakers in poor countries to develop heterodox doctrines. We explore different manifestations of legal heterodoxy across various areas of private law in a range of countries in the Global South. Recognizing legal heterodoxies in the Global South enlarges our understanding of legal experiences and possibilities, and contributes to our understanding about the driving forces and direction of legal evolution around the world.

Prevailing stereotypes depict the corporate laws of developing countries as either antiquated or plagued by problems of enforcement and misfit despite formal convergence. This chapter offers a different view by showing how Global South jurisdictions have pioneered heterodox stakeholder approaches in corporate law. Examples of those approaches include the erosion of limited liability for purposes of stakeholder protection in Brazil and India, the adoption of mandatory corporate social responsibility in Indonesia and India, and a large-scale program of Black corporate ownership and empowerment in South Africa, among many others. By incorporating broader public policy and distributional objectives into corporate law, heterodox stakeholderism can be interpreted as an institutional adaptation to a context of high inequality and externalities that remain unaddressed through other areas of law. As the rise of inequality and growing distrust of the state’s ability to tackle social and environmental concerns have brought the Global North closer to the Global South’s realities, the resurgent interest in stakeholderism in the developed world constitutes a surprising form of “reverse convergence” that merits greater attention. Heterodox stakeholderism in the Global South also responds to critical, but heretofore neglected, distributional implications of corporate law rules.

Does contract law have any role to play in tackling economic inequality, one of the most pressing problems of our time? The orthodox answer to this question is no: contract law should promote autonomy, efficiency, and/or justice in exchange, while distributive objectives should be dealt with exclusively through the fiscal system. Critics of this orthodoxy struggle with the prevailing understanding that contract law around the world has converged on doctrines that are insensitive to distributive considerations. This chapter contributes to this debate by showing how courts in South Africa, Brazil and Colombia prominent Global South countries from different legal traditions – have recently diverged from orthodoxy to embrace the task of using contract law to address inequality. The emergence of contract law heterodoxy in Global South countries draws attention to the existing, if more limited, instances of heterodoxy in the contract laws of the United States and Europe and to the stakes of contract law more generally. This analysis highlights how mounting inequality may increase the appeal of contract law heterodoxy and suggests that the present reign of contract law orthodoxy is neither universal nor inevitable.

Despite experiencing particularly severe and potentially irreversible climate change impacts, Peru has not yet developed explicit national policies on loss and damage. This chapter draws on the analysis of government policy and legislative documents, as well as twelve semi-structured interviews with key public and civil society actors, and identifies two key factors which contribute to limiting Peru’s engagement with loss and damage at the national level: national identity and policymaking politics. With respect to the former, the chapter argues that the issue of loss and damage is perceived as inconsistent with Peru’s identity and status as an upper middle-income country. National actors tend to frame loss and damage as “money for the poor” and thus something concerning Small Island Developing States and least developed countries, and there is also a fear that, as a middle-income nation, Peru might potentially be liable for claims against the nation state for the impacts of climate change. Moreover, Peru’s extractivist development and economic model limits the discussion and uptake of bold climate-related policies. With respect to (party) politics, the chapter finds that loss and damage is seen as highly contentious in Peru’s policymaking process and that it lacks the necessary support from civil society organizations.

The case of The Bahamas highlights the institutionally disruptive impacts of climate change. Despite pioneering efforts in national adaptation legislation in the mid 2000s, the chapter finds that The Bahamas has largely focused on relatively conservative programs concerned with climate change mitigation rather than adaptation or loss and damage. Yet drawing on semi-structured interviews and an analysis of relevant policy documents, the chapter also suggests that climate change has impacted the configuration of relevant institutional bodies in The Bahamas. As the analysis demonstrates, the loss and damage associated with several extreme weather events in the late 2010s led to the establishment of the Ministry of Disaster Preparedness, Management and Reconstruction; the strengthening of the legal framework for environmental protection; and the growing resonance among civil society organizations of the implications of climate change for their humanitarian and nature preservation work. The chapter argues that while much of The Bahamas’ loss and damage policy agenda is focused on developing the knowledge, resources, skills, and governance frameworks to grapple with the impacts of climate change, it is also worth paying attention to how climate change impacts are reshaping political institutions and defining the possible contours of knowledge generation.

This chapter focuses on how Bangladesh, a country with extensive experience of climate-related disasters, has dealt with loss and damage in its national policymaking. In response to its high vulnerability, Bangladesh is – among the countries studied in this book – a role model in disaster reduction and preparedness. However, the government’s efforts do not meet the scope of needs connected to climate impacts on the ground. Drawing on a review of relevant policy documents and semi-structured interviews with key public and civil society actors, the chapter analyzes national-level engagement with loss and damage from climate change in Bangladesh. It demonstrates that while fundamentally all ministries in Bangladesh are involved in averting, minimizing, or addressing loss and damage, the concept is yet to be fully integrated in national policy. The chapter also finds that existing policies tend to focus on addressing economic losses and overlook the significant noneconomic losses from climate change. It is argued that integrating loss and damage into national policies, establishing a fair national mechanism, and creating a comprehensive database of loss and damage data would strengthen Bangladesh’s role as both an advocate for loss and damage governance and a leader in climate response.

Chile has begun to play a new leadership role on loss and damage in the international negotiations. Historically, Chile engaged little with loss and damage discussions in negotiations, but this changed with its presidency of the twenty-fifth Conference of Parties in 2019. Drawing on a review of the domestic policy landscape and institutional responses to loss and damage as well as fourteen interviews with key government, non-governmental organization, and private sector actors, this chapter suggests that while the presidency role acted as a driver for Chile taking the lead on the topic at the international level, the country’s economic identity acts as a constraint on the domestic development of adequate responses to loss and damage and on engagement with the loss and damage terminology. It also finds that Chile’s centralism and lack of ministerial coordination as well as the relatively institutionally weak position of the Ministry of the Environment limits more effective loss and damage governance. The chapter further argues that loss and damage as a concept has not permeated Chilean civil society. Finally, it demonstrates that Chile’s prioritization of economic growth and its extractivist economy undermine efforts to meaningfully address loss and damage at the national level.

Advancing the emerging field of comparative climate governance and policymaking, this book explores national loss and damage policymaking through seven empirically grounded studies of loss and damage governance across vulnerable countries in the Global South. The introductory chapter sets the scene by presenting the key themes, research questions, and contributions of the book. Following an introduction to the concept of loss and damage from climate change impacts and its emergence at the international level, the chapter argues for a political science of loss and damage that is sensitive to the “national turn” in research on loss and damage governance. The chapter then presents the seven country case studies featured in the book including Small Island Developing States, least developed countries, and emerging economies: Tuvalu, Antigua and Barbuda, The Bahamas, Ethiopia, Bangladesh, Peru, and Chile. The case studies show variation in the way countries engage with loss and damage, highlighting the importance of national contexts in understanding the success and/or failure of policymaking. The chapter concludes with a summary of key themes and findings emerging from the case studies and discusses ways in which they advance our understanding of climate policy.

As the second lowest-lying country in the world, and because of its fragile economy and social and environmental vulnerabilities, Tuvalu is severely affected by the impacts of climate change. The country has been very active in developing ways of responding to these challenges at the national policy level and has also included the issue of loss and damage in official documents since 2012. At the same time, Tuvalu has played an active role in international loss and damage negotiations, including advocating for a separate article on loss and damage in the Paris Agreement. This chapter explores how Tuvalu’s policy actors make sense of and attempt to govern loss and damage at the national level. Using interpretive policy analysis and thirteen semi-structured interviews, it suggests that loss and damage in Tuvalu is developing as a “complex governance system” with competencies and agency spanning across multiple scales. The chapter finds that loss and damage does not feature as a stand-alone policy domain, nor is it explicitly distinguished from adaptation, but rather is treated as an issue which cuts across different sectors and policy areas, including climate-induced human mobility, infrastructure investment, national sovereignty and the protection of the country’s exclusive economic zone.

The book’s concluding chapter draws together insights from across the empirical case studies, showcasing the diversity of outcomes on national policy action on loss and damage. By offering a comparison between the different Global South countries studied, the chapter identifies patterns with respect to how policymakers and other stakeholders are approaching policy development, adoption, and innovation. It finds that Antigua and Barbuda, Tuvalu, and Bangladesh have moved the furthest in terms of policy development and innovation, while Ethiopia and The Bahamas have been slower to engage with loss and damage at the national level and Peru and Chile are only starting to understand the relevance of loss and damage for national policymaking. The chapter argues that while the very concept of loss and damage is an international construct, its meaning is still being contested and reconstituted within and across scales of governance. The chapter ends by outlining a research agenda for further studies in the context of the national turn in loss and damage governance.

This chapter explores how the landlocked state of Ethiopia has been dealing with loss and damage, identifying several paradoxes in its climate change policy development. First, despite growing awareness of Ethiopia’s vulnerability to the impacts of climate change in the late 2000s, early climate policymaking was focused on mitigation strategies rather than adaptation. Second, in many ways, Ethiopia does not fit the classic mold of a country grappling with loss and damages since until relatively recently in the history of the UN climate change system, loss and damage had been more narrowly framed as an issue that concerns Small Island Developing States. Using insights from semi-structured interviews and policy document analysis, the chapter argues that the trajectory and emphasis of global climate governance and commitment to a green economic development model shaped Ethiopia’s early domestic priorities in climate policy development. It also shows that political awareness of loss and damage has increased as the Ethiopian government has navigated the consequences of climate change and with the growing prominence of loss and damage within the UN. Moreover, the chapter finds that potential novel opportunities to draw on international sources of climate finance have been a driver of growing policy engagement.