Greener Arbitrations – The Way Forward in International Dispute Resolution?

The drive towards sustainable change looks set to continue in 2021, with climate change issues continuing to receive attention from ESG-minded businesses and governmental bodies. The legal community is likewise keen on reducing the environmental impact of dispute resolution activities, in particular, in the (previously) jet-setting world of international arbitrations.

One such initiative is the Campaign for Greener Arbitrations which aims to significantly reduce the carbon footprint of the arbitration industry. In this Blog Post, read about the proposed framework and six protocols for greener arbitrations that are currently in public consultation and how these might feature in arbitration proceedings in the near future.

The Need for Greener Arbitrations

The Campaign for Greener Arbitrations was founded by International Arbitrator, Lucy Greenwood, in 2019. Since then, the Working Group of the Campaign for Greener Arbitrations has reviewed and considered all aspects of international arbitration from the perspective of arbitration practitioners, parties, institutions and vendors.

The need for more sustainable practices is underscored by an initial study by the Campaign for Greener Arbitrations which projected that a large scale arbitration could require just under 20,000 trees to offset the total carbon emissions resulting from one arbitration. The potential environmental impact from arbitrations could be immense taking into account the number of arbitrations conducted annually. In Asia, for example, the Hong Kong International Arbitration Centre (HKIAC) had 318 arbitration filings in 2020 and the Singapore International Arbitration Centre (SIAC) had 1,005 new cases filed in 2020 as at 30 October 2020.

In January 2021, the Campaign for Greener Arbitrations put forward a Framework for the Adoption of the Green Protocols (Framework) and six associated Protocols (Green Protocols) with the aim of guiding organisations and individuals to reduce the carbon footprint of the international arbitration community through specific actions.

The Framework

The Framework proposes a number of practical ways for the arbitration community to reduce waste and energy consumption in arbitration proceedings, including:

1. Creating a workspace with a reduced environmental footprint by looking for opportunities to reduce energy consumption and waste;
2. Corresponding electronically, unless hard copy correspondence is expressly needed in the circumstances, while also being mindful that email has a carbon footprint;
3. Encouraging the use of videoconferencing facilities as an alternative to travel (including for the purposes of conducting fact finding or interviews with witnesses);
4. Avoiding printing, requesting the use of electronic rather than hard copies of documents and promoting the use of electronic bundles at hearings;
5. Using, where possible, suppliers and service providers who are committed to reducing their environmental footprint (including for the purposes of arranging an arbitration hearing);
6. Considering and/or suggesting, where appropriate, that witnesses or experts give evidence through videoconferencing facilities, rather than attend hearings in person;
7. Avoiding unnecessary travel and using videoconferencing facilities as an alternative; and
8. Considering and questioning the need to fly at all times, and offsetting carbon emissions for any arbitration–related travel.

Indeed, some of the above practices may already be part of “business as usual” practices given the continuation of travel restrictions resulting from the COVID-19 pandemic.

The Green Protocols

The six Green Protocols are to be read together with the Framework. The Green Protocols can be adopted either individually or in combination and cover the following areas:

• Arbitral Proceedings and Model Green Procedural Order;
• Law Firms, Chambers and Legal Service Providers working in arbitration;
• Arbitrators;
• Arbitration Conferences;
• Arbitration Hearing Venues; and
• Arbitration Institutions.

In line with the Framework, the sustainable measures in the Green Protocols fall into the following main categories:

• Using clean energy;
• Reducing energy consumption;
• Minimizing printing and use of paper;
• Encouraging recycling;
• Limiting use of single use items (e.g. coffee cups) and eliminating plastic;
• Partnering with “green” organizations;
• Travelling responsibly;
• Incentivizing staff (to encourage greener behaviors);
• Engaging in social responsibility initiatives; and
• Offsetting carbon emissions.

A Greener Future

Arbitration cases vary in size, value and complexity, amongst others. It is therefore not practical for there to be a “one size fits all” approach. The Framework suggests that the parties or the Tribunal, as appropriate, should consider whether and which sustainable measures are appropriate for a particular arbitration depending on the circumstances of the parties and the case. The Framework includes a list of potential factors for consideration.

Notably, the Framework and Green Protocols are not binding and parties are free to agree on the extent, if any, that they wish to displace or derogate from the applicable rules of the arbitration or the arbitration agreement. The Framework and Green Protocols are further not intended to establish liability or a liability standard for legal or regulatory purposes.

Regardless of whether a party opts to formally adopt the Framework and Green Protocols in an arbitration, they are a helpful source of practical measures that can be applied by those seeking to reduce the carbon footprint of arbitrations.

The public consultation for the Framework and Green Protocols closes mid-March 2021. View the full text of the Framework and Green Protocols here.

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