Out-Law Analysis | 20 May 2022 | 1:28 pm | 2 min. read
On Earth Day 2021, the Campaign for Greener Arbitrations published a set of green protocols: a concise set of directives intended to guide the international arbitration community in its efforts to reduce the environmental impact of arbitral practices.
The protocols provide practical guidance on putting into effect the campaign’s Green Pledge which many members of the arbitration community have signed, including law firms, arbitrators and arbitral institutions.
Immediately upon signing the pledge, a Pinsent Masons team reviewed the protocols, considered the practicalities of compliance and educated its practitioners on the changes that are necessary to reduce the carbon footprint of arbitrations. This was in line with the firm’s ambition to halve carbon emissions by 2030 compared to 2019 levels, and achieve net zero by 2050.
The team subsequently led an internal campaign to educate and encourage adoption of the protocols where feasible and appropriate to do so. The campaign included transactional lawyers responsible for drafting dispute resolution clauses, to encourage reference to be made to the protocol for arbitration proceedings in their arbitration agreements.
The work of the Campaign for Greener Arbitrations is leading to a shift in the way arbitration practices are being looked at on a global basis. It is no longer the case that hearings are by default held in person, or that large hard copy bundles are printed in multiple copies, never to be opened. Practitioners are increasingly engaging with cloud-based platforms to handle large volumes of data and to exchange electronic submissions.
However, it is not realistic to expect an immediate shift. Some institutional rules require hard copies to be submitted.
It is no longer the case that hearings are by default held in person, or that large hard copy bundles are printed in multiple copies, never to be opened
The Pinsent Masons team conducted an audit of its technology, stationery and supply chain to ensure it is as carbon neutral as possible. This process included checking that the paper used in printers is elemental chlorine free – meaning it is bleached using chlorine dioxide instead of the less environmentally acceptable chlorine gas – and confirming that the type of printers are LED UV capable printers, rather than using fluorescent bulbs containing mercury.
Where arbitrations involve witnesses and experts spread across multiple jurisdictions, there is an increasing trend towards practitioners carrying out interviews and meetings, as well as procedural and substantive hearings, remotely via video conferencing platforms.
The approach is working well, and some practitioners have expressed a preference for the ‘new normal’ – especially in the context of cross-examination, where factual and expert witnesses being cross-examined are in full view of a high-definition camera. The virtual approach seems to be perfectly manageable, provided everyone concerned has reasonably strong internet connections, and exercises patience in moments where there are technical issues or delays.
Stepping onto a plane for a directions hearing or to meet and interview a witness in another country would now require serious consideration. Clients are also happy that practitioners are pausing to think about these issues, not only because of the environmental impact but also because of the potential cost reduction.
The movement towards electronic bundles and virtual hearings has been endorsed by the International Chamber of Commerce and the International Bar Association.
For example, article 26.1 of the 2021 version of the ICC Arbitration Rules permits tribunals to decide that a hearing will be conducted remotely, while article 8.2 of the 2020 Revised IBA Rules on the Taking of Evidence in International Arbitration encourages tribunals to consider time, cost and environmental concerns when determining whether an evidentiary hearing should be held remotely.
The Campaign for Greener Arbitration movement, and encouragement from these heavyweight institutions, give legal representatives faced with carbon intensive suggestions to confidently challenge tribunals and opposing counsel where traditionalist behaviour introduces unnecessary and now intolerable emissions.
Co-written by Rebecca Harding of Pinsent Masons
09 Aug 2021
17 Apr 2020