11 June 2021

Under Construction - Q3 2021 – 4 of 5 Insights

Dispute resolution and environmental impact – new practices to reduce environmental impact

  • Briefing

As the global community takes a more serious look at the effects of its environmental impact, the Campaign for Greener Arbitrations focusses specifically on what the arbitral community can do to reduce its carbon footprint and bring about more sustainable dispute practices.

The Campaign highlights that offsetting the carbon footprint of just one large-scale international arbitration could require the planting of up to 20,000 trees. It is easy to see why. In a construction arbitration, the project, the witnesses, the legal counsel, the tribunal and the arbitral body may each be located in different countries. At some stage they will be required to convene in one location for a hearing, often surrounded by mountains of papers. The flights and printing for a hearing alone will have a measurable environmental impact, but the proceedings may also require, for instance, traveling for site visits, and the couriering of papers and submissions around the globe.

The Campaign establishes what it refers to as its “Guiding Principles” to help those working in arbitration to reduce this environmental impact as follows:

  • creating a work space with a reduced environmental footprint by looking for opportunities to reduce energy consumption and waste
  • corresponding electronically, unless hard copy correspondence is expressly needed in the circumstances, while also being mindful that email has a carbon footprint
  • encouraging the use of videoconferencing facilities as an alternative to travel (including for the purposes of conducting fact finding or interviews with witnesses)
  • avoiding printing, requesting the use of electronic rather than hard copies of documents and promoting the use of electronic bundles at hearings
  • using, where possible, suppliers and service providers who are committed to reducing their environmental footprint (including for the purposes of arranging an arbitration hearing)
  • considering and/or suggesting, where appropriate, that witnesses or experts give evidence through videoconferencing facilities, rather than attend hearings in person
  • avoiding unnecessary travel and using videoconferencing facilities as an alternative
  • considering and questioning the need to fly at all times and offsetting carbon emissions for any arbitration-related travel.

In order to assist arbitral practitioners in achieving these outcomes, in early 2021 the Campaign published a series of “Green Protocols” with practical guidance and clear instructions to help users reduce their emissions and carbon footprint, which are tied together by a framework for adoption.  The Green Protocols comprise a series of distinct set of considerations applicable to each of the main actors in arbitral proceedings, namely:

  • law firms, chambers and legal service providers
  • arbitrators
  • hearing venues
  • conference providers
  • arbitral institutions.

The Green Protocols also include the Model Green Procedural Order which tribunals can adopt in order to ensure the implementation of sustainability measures from the inception of a matter right through to its conclusion. The Campaign also asks arbitral professionals to sign the “Green Pledge” to indicate their commitment to the cause.

Modern arbitral practice has been developed over multiple generations. Proposing such a fundamental shift in the conducting of arbitrations away from hearings in person and avoiding the printing and couriering of reems of paper therefore requires a significant change in mindset.

In this connection, the COVID-19 pandemic has assisted in the “greening” of arbitration hearings to some extent out of necessity:

  • The closing of borders and restrictions on gatherings caused arbitral centres and courts around the world to adopt rules permitting hearings by virtual means.
  • The technology behind virtual hearing platforms has improved so that the presentation of electronic evidence, the reviewing of transcripts and resolving of technical issues can be managed more effectively and securely.
  • The profession as a whole has been working to develop certain norms and practices around virtual hearings, such as protocols for the cross-examination of witnesses.
  • The combined effect of the previous three items is that, dependent on jurisdiction, the use of virtual hearings is now perceived to create less of an enforcement risk, meaning that parties are more likely to agree to virtual hearings, and may make them more inclined to choose virtual hearings again, even post-pandemic.
  • Tribunals have quickly become used to (and found benefit in) the use of electronic bundles.
  • The conducting of proceedings by virtual means can result in a reduction in the costs of proceedings by, for instance, reducing flight and accommodation expenses, venue hire, and printing.

The moving of the profession towards greener hearings during the COVID-19 pandemic may be an unintended, pleasant side effect. However, the combined effect of cost savings, reduced enforcement risk and the reduction in environmental impact will hopefully encourage parties to continue embracing these solutions post-pandemic.

Naturally there will not be a one size fits all policy. In those cases, the Green Protocols can still assist parties in finding ways to reduce the environmental impact of their proceedings, such as by adopting electronic communications instead of letters, avoiding printing of pleadings/submissions in favour of electronic filing, working with providers who adopt environmentally friendly practices, powering your organisation through cleaner forms of energy, and engaging in carbon offsetting.

If you would like to know more about the effect of COVID-19 on construction disputes or more about the growing use of virtual hearings, you can read two further articles on the topic below:

In this series

Real estate & construction

Smart technology and construction

11 June 2021

Real estate & construction

Does an expert owe of fiduciary duty to its client?

11 June 2021

by Rebecca May

Real estate & construction

Government response to Fire Safety Order consultation

11 June 2021

by Rona Westgate

Construction & engineering

Construction and the road to net-zero

11 June 2021

by Rona Westgate

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