Arbitration – The Greener, The Better

The world of commercial law undeniably involves a lot of hours of work, travelling and expenses. Consequently, it also involves a lot of energy consumption and has impacts on the environment that are perhaps not as prominent as they used to be, especially before Covid-19 struck, with many law firms increasingly incorporating ‘greener’ options in their practice, including by transferring a lot of their work from a physical to a digital format. Nevertheless, a light was cast earlier this year upon the extent to which arbitrations have made their mark on the environment.

A research project by The Campaign for Greener Arbitrations identified the environmental footprint of a medium-sized arbitration, showing that it to use the equivalent of ‘just under 20,000’ trees. Stuart Bruce, until recently in private practice in  international arbitration and a member of the Steering Committee of the aforementioned campaign, provided some useful insight regarding his experiences. He described that, in his experience, every disputes lawyer is acutely aware of the volume of paper that is produced, and often wasted, for every hearing.  His involvement with Lucy Greenwood’s pledge began in mid-last year, when he reached out offering his expertise. He was inspired to do so due to his many years of practicing and witnessing the significant environmental footprint of large arbitrations, and legal practice generally. His work with the campaign involved drafting protocols and model procedural order and seeing through the process of bringing those protocols together, ensuring their practicality and efficiency, and empowering individuals in the professional, particularly those more unfamiliar with green practices, to implement them. There are currently six protocols drafted by the Green Pledge and a model procedural order which can be adopted by practitioners.

A recent article describing an internal investigation by Herbert Smith Freehills, a firm renowned for its expertise in dispute resolution, discussed the issue and conducted an internal case study which demonstrated that 57% of the carbon footprint of a medium-sized arbitration consists of energy usage, while 41% consists of travel and 2% of materials. That begs the question: has the Covid-19 pandemic been a motivator for cleaner and greener arbitrations? Stuart expressed the view that the pandemic has undoubtedly accelerated the process of digitisation and virtual hearings, and encouraged professional services firms rapidly to find solutions for their clients in an evolving world. This, he argues, has contributed to resetting expectations in the professional legal sector. But the existing culture does encourage certain aspects of work to be conducted face-to-face. Stuart also mentioned the efforts that were already being made pre-pandemic to reduce the printing effects of arbitrations. This included a transition to alternative solutions such as document management tools and a general trend towards more climate-conscious practices.

In addition to contributing to the drafting of the protocols, Stuart encourages practitioners to engage in their work in climate-cognisant ways. He explained that every practitioner and student can utilise these tools to affect a small, but important contribution to carbon-reduction in this field and eventually, carbon-reduction globally. Other notable contributions have also been highlighted in Stuart’s previous writings, such as The Chancery Lane Project, which has attempted to make tangible change by building a “Net Zero Toolkit” and a variety of model clauses and laws that can be adopted to mitigate the environmental effects of in commercial contracts and dispute resolution. The Steering Committee has also recently seen through a regional model, which Stuart explains is important due to the international nature of arbitration. According  to Stuart, these regional branches will enable the messaging and action towards practitioners’ needs to be tailored to their professional and cultural locales.

The many efforts by the arbitration community, including the new LCIA and ICC Arbitration Rules, contribute to several United Nations Sustainable Development Goals such as Affordable and Clean Energy, Sustainable Cities and Communities and Climate Action. What remains is for a greater number of law practices to openly acknowledge the effects that legal practice and arbitration can have on the environment (the legal profession is not unique in this regard), and pledge their support to the many projects and start-up organisations launched in the arbitration community and beyond. The Covid-19 pandemic alone is not enough to affect the change needed for environmental sustainability to prosper in the world of arbitration. Stuart encourages all practitioners to do what they can to help the world reach its carbon-reduction goals and praises those in the arbitration field who have taken on leadership roles in the hope that others will emulate their practices.

Disclaimer

Stuart’s insights shared in this article are his personal views and are not necessarily representative of any other parties mentioned in this article.

By Alexandra Bjorustad