Green Arbitration,
the arbitration that can change the world
Reading time: 3 min.
Contribution written by Riccardo Aquilini
In the last decades it is clear the will of all the states in the world to try to do something more to help save the planet. From the UN to the European Commission, passing through the various conventions, agreements and protocols, it seems that every sector is evolving towards a greener and more ecological direction. All sectors except one, the legal sector. From this point of view, the legal sector, although of fundamental importance and relevance, is still far behind, and it is only in the last two years that we have timidly begun to talk about a revolution in this sense.
In this sense everything seems to start in the world of international arbitrations and mediations, where the international arbitrator Lucy Greenwood in the summer of 2020 noted how this sector is still dangerously behind and needs to radically change its being. For this reason, she launched the “Campaign for Greener Arbitrations” also known as “green Pledge” which has been very successful since the beginning, and is slowly changing the way of understanding arbitration.
To tell the truth, this campaign was not the very first moment of approaching the problem of pollution and climate change, already in 2014, the International Bar Association published its report entitled “Achieving Justice and Human Rights in an Era of Climate Disruption”[1] where a task force of experts addressed the issue of climate change, pollution and human rights. The International Chamber of Commerce also did not miss the opportunity, and in 2017 published a collection of articles titled “Dispute Resolution and Climate Change: The Paris Agreement and Beyond”[2] where they discuss what the opportunities, difficulties, and challenges of the future are with regard to climate change and eco sustainability.
In the wake of this awareness, several professionals, including arbitrators, mediators, lawyers and other practitioners have joined the green Pledge campaign by changing their habits and the way they work.
The sustainability campaign is mainly based on avoiding unnecessary waste and emissions, reducing costs and simplifying the arbitration process. First of all, the basic idea is to try to digitalize the whole international arbitration process. Regarding the consumption and waste of paper, the hope is to transform all documents from paper to electronic format, ensuring the same privacy and security of the parties, also allowing an easier circulation. Another measure encouraged by the Green Arbitration protocols is the virtual hearing, i.e. the possibility of hearing parties, witnesses, experts and lawyers no longer in person but through the various IT tools available to the courts, thus avoiding the need to move around, with a significant impact on carbon emissions. These are just two of the many changes that are hoped for the near future, to be more precise in the Pledge are identified 9 micro-changes that although apparently insignificant could already change a lot the results of this campaign, these are[3] :
- to “consider and question the need to fly” at all times during the arbitration;
- to “correspond [only] through electronic means” unless the circumstances expressly require otherwise;
- to “request that electronic rather than hard copies of documents” be provided;
- to “discourage the use of hard copy bundles in hearing rooms”;
- to suggest that “witnesses give evidence through video-conference” rather than attending oral hearings in person, when appropriate (for arbitrators and mediators);
- to “be mindful that email has a carbon footprint”;
- to “avoid traveling unnecessarily to deliberate with [] co-arbitrators/mediators and use screen sharing/video technology instead” (for arbitrators and mediators);
- to “avoid traveling unnecessarily to conduct fact finding or other interviews with witnesses and use screen sharing/video technology instead when appropriate” (for counsel); and
- finally, an obligation on everyone to “offset the carbon emissions of any flights” taken for an arbitration or mediation.
These warnings are not only excellent ideas for discussion and abstract considerations, but they are starting to impact the rules of the various arbitration institutions, just think of the new ICC rules or the LCIA rules, which have provided, also because of Covid-19, a set of rules that experiment this new technological frontier.
The idea is that each of us, anyone, from arbitrators to simple operators of the various chambers, can, by changing their habits and being careful not to pollute, significantly change the waste and consumption in international commercial arbitration and revolutionize the entire industry. Surely there is still a lot of work to be done, the road will be long and hard, but the increasing number of adhesions gives hope for the future.
[1] To consult it, here is the link: https://www.ibanet.org/PresidentialTaskForceClimateChangeJustice2014Report.aspx#bookreviews
[2] To consult it, here is the link: https://2go.iccwbo.org/dispute-resolution-and-climate-change.html
[3] See, L. Greenwood and K.A.N Duggal, The Green Pledge: No Talk, More Action, Kluwer Arbitration Blog : http://arbitrationblog.kluwerarbitration.com/2020/03/20/the-green-pledge-no-talk-more-action/
