There are three things that have traditionally been the backbone of any international arbitration: paper, coffee and travel. Unfortunately, each of these things has a huge negative impact on the environment. Whilst coffee lovers will be relieved to learn that of those three things, coffee is the smallest offender (think disposable coffee cups), the largest environmental impact comes from 1): international air travel (especially those flying in the pointy end of the plane), and 2): paper. Too many trees have given their lives in the pursuit of justice.
Al Gore inconveniently warned us in 2006, and if the situation wasn’t clear then, it is now impossible to ignore the impact that human activity has on the environment. This was hammered home on a global scale recently when devastating bushfires tore throughout parts of Australia and the United States: events which scientists have confirmed were exacerbated by human driven climate change.
Thankfully, small changes in our approaches to arbitration can bring about a huge reduction in the carbon footprint of an arbitration, and many of these things have become standard practice as a result of the Covid-19 pandemic. In this post I set out 5 reasons why international arbitration lawyers should go green by questioning whether that international flight is necessary, thinking before they print and by always remembering to bring their KeepCup to the hearing.
The Campaign for Greener Arbitrations
The Covid-19 pandemic has forced practitioners worldwide to change the way they work and has a provided a real opportunity to embrace more environmentally friendly practices in relation to arbitration. Lucy Greenwood, an international arbitrator based in London, has been advocating for “green arbitrations” since 2019, when the Campaign for Greener Arbitrations (the Campaign) was launched. Since then, the Campaign has gained enormous momentum, and will continue to be an important part of the global shift toward sustainability in legal practice. Without further ado, here is why it is good to be green.
Reason 1 – It’s good for the planet, and we only have 1 planet
This one is obvious. If you’re not already convinced of the impact that an arbitration has on the planet, perhaps these statistics will convince you. The Campaign prepared a case study to determine the carbon footprint of a medium sized international arbitration (valued at US$30-50 million). The study concluded that total carbon impact of the arbitration was a whopping 418,531.02 kg CO2e, which we understand is a lot! In terms of offsetting the emissions, this would require planting more than 20,000 trees, which as the Global Arbitration Review notes is a “number equivalent to four times the number of trees in Hyde Park or all the trees in Central Park.”[1]
Reason 2 – it fits with the new way of working
The Campaign promotes clients, counsel and arbitrators to take the Green Pledge, which provides guidelines on how we can more thoughtfully consider the environmental impact of an arbitration. There is a significant overlap between the objects of the Pledge and the effects that the Covid-19 pandemic have had on working practices in the legal profession. Covid-19 has brought a reduction in face-to-face meetings, either for social distancing reasons or due to the inability to travel, and an increased reliance on technology to run hearings, facilitate meetings or to access documents electronically. Amongst 9 commitments, the Pledge asks practitioners to:
- “consider and question the need to fly” at all times during the arbitration;
- “correspond [only] through electronic means” unless the circumstances expressly require otherwise; to “request that electronic rather than hard copies of documents” be provided;
- “discourage the use of hard copy bundles in hearing rooms”; and
- suggest that “witnesses give evidence through video-conference” rather than attending oral hearings in person, when appropriate (for arbitrators and mediators).
The rapid uptake in technology in legal practice stemming from the pandemic has helped these initiatives become standard practice. Moreover, the speed at which the profession was able to embrace remote working and virtual hearings despite the associated challenges signals a willingness and ability to adapt the ways of working, whilst ensuing client outcomes aren’t compromised.
The HKIAC recently signed the Green Pledge in support of the Campaign,[2] and other arbitral institutions across the world have thrown their weight behind the Campaign. It is possible that over time, these practices could become mandated, and if that happens, practitioners who were early adopters will be in a much better position to handle any changes. Early adopting is also likely to help avoid situations such as the “Lawyer-Cat”, who famously reminded the presiding judge “I’m not a cat,” or the Florida judge who was forced to ask counsel appearing before His Honour to get out of bed, and to put some clothes on.
Reason 3 – It’s efficient to be green
Lawyers love efficiency. Time is money and international travel is time consuming. Depending on the reason for the travel, this travel might not always be warranted. Take for example a witness conference to take evidence: with the marvel of modern technology and a little preparation, both the lawyer and witness can easily have access to all of the material needed to conduct a conference with the witness on the other side of the city, or the world.
Reason 4 – It will reduce costs
This is an extension of the efficiency point, and one for the client holding the cheque book. If technology is utilised properly, more time can be spent on winning the case rather than (essential yet time consuming) tasks such as printing, organising hard copy bundles and travelling. Your client will love you for that.
Reason 5 – It is well within our power
One of the main advantages of arbitration over litigation is the flexibility and autonomy which the parties are empowered with. Private arbitrations are not constrained by the same rules that govern Courts, and parties have the power to select procedural rules at the outset of an arbitration that encourage environmentally friendly behaviour. The Campaign released several procedural orders (known as the Green Protocols) suitable for adoption by Tribunals (either in whole or in part) to implement sustainability measures throughout the conduct of an arbitration. The Green Protocols can be accessed here.
Final remarks
Lawyers are creatures of habit, and whilst it may be overly ambitious to expect all the available green initiatives to be universally adopted immediately, it is realistic and achievable for lawyers to adopt these changes progressively. It was Churchill that said, “never let a good crisis go to waste”, and if any positive can be taken from the Covid-19 pandemic, it is the forced acceleration of utilising technology and remote working practices. The challenge now lies in continuing to embrace these practices in the future. Go on, do it for your children, and your children’s children.
[1] Is it easy, being Green?, Global Arbitration Review, 15 November 2019: https://globalarbitrationreview.com/it-easy-being-green.
[2] https://www.hkiac.org/news/hkiac-signs-green-pledge-supports-green-protocols#:~:text=HKIAC%20is%20a%20member%20of,action%20items%20targeting%20key%20stakeholders.
