The framework for greener arbitration
By Piotr Paprota, advocate, senior associate
When it comes to climate action, President Barack Obama once put it bluntly: “we are the first generation to feel the impact of climate change and the last generation that can do something about it”. Climate change mitigation and adaptation measures must be urgently taken to tackle the challenge posed by global warming. Such measures, however, could – and in the past already have led to – climate-related disputes. Arbitration provides a neutral forum for climate-related claims, as a framework for settling both investor-state disputes and commercial disputes. Still, the arbitration process as such is not carbon neutral, and could further benefit from reduction of its average carbon footprint with a view to aligning it more with climate action goals.
The carbon footprint of arbitration proceedings
The problem of arbitration’s carbon footprint lies at the heart of the Campaign for Greener Arbitration, an initiative aimed at reducing the environmental impact of international arbitrations. The campaign analysed the total carbon emissions resulting from medium- and large-scale arbitration proceedings (valued at $30-50 million) and found that offsetting them would require planting around 20,000 trees (the total carbon impact in CO2e of the arbitrations in the case study was 418 tonnes ). To put this number into perspective, we are talking about four times the number of trees in Hyde Park.
The founder of the initiative, Lucy Greenwood, explained that over 93% of the identified emissions attributable to arbitration proceedings was connected with travel (such as attending hearings, interviewing and preparing witnesses etc). Hard copy (paper) submissions also substantially contributed to the overall carbon footprint of the proceedings.
The principles for sustainable change in arbitration
Having identified the problem, the initiative intends to drive sustainable change in arbitration by raising awareness of its significant carbon footprint in the dispute-resolution community and encouraging all stakeholders (arbitrators, parties to the dispute along with their counsels, and arbitral institutions) to commit to the campaign’s guiding principles (the ‘Green Pledge’). Reducing the environmental impact of arbitral practice according to the Green Pledge means:
- creating a work space with a reduced environmental footprint by looking for opportunities to reduce energy consumption and waste
- corresponding electronically, unless hard copy correspondence is expressly needed in the circumstances, while also being mindful that email has a carbon footprint
- encouraging the use of videoconferencing facilities as an alternative to travel (including for the purposes of conducting fact finding or interviews with witnesses)
- avoiding printing, requesting the use of electronic rather than hard copies of documents and promoting the use of electronic bundles at hearings
- using, wherever possible, suppliers and service providers who are committed to reducing their environmental footprint (including for the purposes of arranging an arbitration hearing)
- considering and/or suggesting, where appropriate, that witnesses or experts give evidence through videoconferencing facilities, rather than attend hearings in person
- avoiding unnecessary travel and using videoconferencing facilities as an alternative
- considering and questioning the need to fly at all times and offsetting carbon emissions for any arbitration-related travel
In brief, the Green Pledge requires arbitration stakeholders to thoughtfully balance their commitments to dispute resolution against its potential carbon impact. As a result of the warm reception of this initiative, the Green Pledge won the Global Arbitration Review’s Best Development Award of 2020 for drawing the arbitration community’s attention to its own carbon footprint. As of today, many of the biggest arbitral institutions officially support the Green Pledge, including two of the leading Polish institutions – the Court of Arbitration at the Polish Chamber of Commerce and the Lewiatan Court of Arbitration.
For purposes of providing practical guidance on implementation of the principles of the Green Pledge in arbitral practice, the campaign developed a set of documents promoting more sustainable behaviour through a series of action items, known as the Green Protocols. These include specific guidelines for:
- arbitral proceedings and a model green procedural order
- law firms, chambers and legal service providers working in arbitration
- arbitration conferences
- arbitral hearing venues
- arbitral institutions.
The Campaign is not the only initiative offering tools which may prove beneficial in driving sustainable change in arbitration forward. Especially in the recent Covid-19 years, marked as they were by travel restrictions and other measures taken to mitigate the spread of the virus, sets of good practices emerged facilitating the transition to remote arbitral hearings and conducting the whole arbitration process digitally. Just to mention a few – the Seoul Protocol on Video Conferencing in International Arbitration of 2020; the ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the Covid-19 Pandemic of 2020 or the ICCA-NYC Bar-CPR Protocol on Cybersecurity in International Arbitration of 2022.
Additionally, the technology to make arbitration more sustainable has been available for quite some time and is slowly, but surely permeating general practice. Among recent solutions, arbitral institutions are starting to provide case management platforms to connect parties, arbitral tribunals and the secretariat of the court to streamline their communication and enable swift file-sharing in a secure, digital space (such as ICC Case Connect). Centralised platforms accessible anytime, anywhere, and from any device constitute yet another step towards digital transformation of the default ways of conducting arbitration proceedings.
Climate action is necessary. The arbitration community, apart from providing a forum and means for resolving climate-related disputes, may play a role in climate-change mitigation by being mindful of its carbon footprint and by minimising it. It seems that all the necessary components of the framework for greener arbitration have already been established – the guiding principles, protocols, actionable checklists and technological solutions. It is high time to make use of them on a regular basis. The missing step is the deliberate commitment of arbitration practitioners and users to make the shift from traditional, default rules of conducting arbitration to greener and more sustainable practices.