How Green is Your Arbitration?
Arbitration, like any dispute resolution process, has an environmental impact. In recent years this impact has come under scrutiny and the arbitral community has taken great strides to make the process greener, whilst maintaining its integrity. In this article we look at the significant steps taken in recent years to reduce the environmental impact of arbitration, and what the future may hold for the continuation of these efforts.
The Environmental Impact of Arbitration
Assessing the environmental impact of the arbitral process is not straightforward. Each dispute is different and much depends on the scale of the dispute, the number of parties involved and where they are located, the use of experts, and whether there are interim applications.
But the process is generally uniform in its stages, typically consisting of a procedural hearing, written pleadings, disclosure, exchange of evidence, and then the final hearing and issuance of the award. The main environmental impact during these stages can be divided into three types: (1) travel (participants flying/driving to hearings); (2) paper (written correspondence, printed trial bundles, physical final awards); and (3) technology - the energy taken to send emails, power platforms to host data, conduct virtual hearings etc.
Users of arbitration are increasingly concerned about this environmental impact, with many having their own ESG commitments to meet. This, and the concerns of participants themselves (including law firms and arbitrators), has prompted several initiatives in recent years to make arbitration greener.
Current Initiatives
One of the most high-profile initiatives is the Campaign for Greener Arbitrations (the “Campaign”), which was formally launched on Earth Day 2020. The Campaign assessed that it may take the planting of 20,000 trees to offset the carbon footprint of one international arbitration, with long-haul flights alone contributing to over three quarters of associated carbon emissions.
In addition to arranging industry events to bring attention to this environmental cost, the Campaign has created a public register of those who have made the ‘Green Pledge’, which is a commitment to (amongst other things) avoid unnecessary travel and printing, and where possible to use suppliers who are also committed to reducing their environmental footprint.
The Campaign has issued guiding principles and protocols to provide practical guidance on how to make the process greener. There are a variety of protocols specifically aimed at different participants in the process, such as law firms and arbitrators, as well as industry conferences and venues. The advice is detailed and realistic. For example, if printing cannot be avoided it suggests using grayscale, double-sided format and/or reduced paper size and margins to ensure as little paper is used as possible, as well as environmentally friendly toner and ink.
The Campaign has also created a model ‘green’ procedural order for use during the arbitral process, and model language that in-house counsel can use when engaging external counsel to ensure environmental concerns are taken into account. In 2024 the Campaign launched a survey of institutions to identify the level of institutional awareness and engagement on sustainability, as well as to gather data on the challenges institutions face in adopting and encouraging more sustainable behaviour.
The confidential nature of arbitration means that it is difficult to assess how far the Campaign’s guidance has been implemented, but with nearly 2000 signatories it is clear that it has broad support from the industry.
The use of remote hearings took a leap forward during the Covid-19 pandemic when there was little choice but for the process to go fully virtual. Tribunals were able to utilise the flexibility of the process to respond to lock downs by simply directing that hearings take place online and for documents and pleadings to be exchanged electronically. Practitioners who were previously less enthusiastic about going virtual had no option but to familiarise themselves with the various software programmes and other technology needed to engage in a virtual process.
Whilst this was a solution to the practical difficulties suddenly imposed by Covid-19, it did have the consequence of reducing the environmental impact of the process and speeding up the digital transformation of the industry. It demonstrated that arbitrations do not necessarily require in-person hearings, and the associated travel, to be effective.
Permanent changes can be seen in the rules and practices of arbitral institutions. Many institutions now have online case management systems that practitioners can use to file documents. The ICC, for example, launched their digital case management platform (‘Case Connect’) in October 2022, although if needed they will still accept receipt of hard copies. Arbitral rules have also increasingly incorporated expedited procedures and the possibility of striking out bad claims at an early stage, potentially resulting in shorter, and therefore less environmentally impactful, procedures.
Some institutions have gone so far as to include explicit provisions in their rules aimed at limiting the environmental impact of the process. The 2024 Administered Arbitration Rules of the Hong Kong International Arbitration Centre state that the tribunal shall have regard to the environmental impact when manging the proceedings (article 13.1), and the 2023 Saudi Centre for Commercial Arbitration Rules state that tribunals and parties should consider how technology can be used to reduce the environmental cost of the arbitration (article 25).
The Future is Green
Users of arbitration continually report a wish for the process to be cheaper and quicker, and these aims are consistent with a greener process. Whilst it will never be possible to eliminate completely the environmental impact of an arbitration, the use of new technologies may make it possible to reduce the environmental impact further. For example, AI tools may mean it takes less time in future to review and analyse large data sets, resulting in a shorter process (and accordingly less impact on the environment).
Arbitral institutions are uniquely placed to observe to what extent green practices are actually implemented, and they should continue to encourage parties to keep environmental issues in mind. Industry awards should also highlight efforts made to drive the green agenda within arbitration. This has already started to happen with the introduction in 2024 of the GAR Award titled ‘The Campaign for Greener Arbitrations Award for Sustainable Behaviour’. This was won by ICCA for convening a Panel of Experts to develop a draft annex on conciliation of disputes under the Paris Agreement and the UN Framework Convention on Climate Change.
What will remain of paramount importance is the continued efforts to educate and highlight the environmental impact of the process and the often simple steps that can be taken to mitigate it. Parties should also consider reviewing and offsetting their carbon emissions at the end of the final hearing so as to achieve a carbon-neutral process.
Conclusion
Whilst there is still work to be done, arbitration is greener than it has ever been, and will become greener as technology and awareness continue to improve. The flexibility inherent in the arbitral process means that it is well placed to adopt green practices without compromising its effectiveness in efficiently resolving disputes, remaining an attractive option for users who are increasingly concerned with their carbon footprint.
Our expertise
With offices in many of the world’s major arbitration centres, including London, Paris, Geneva, Dubai, Hong Kong and Singapore, we are ideally placed to work with you both to prevent and to resolve disputes as they arise, whatever the law, language, rules, industry sector, or subject matter of that dispute may be. Our dedicated multicultural and multilingual specialists conduct arbitrations under both civil and common law systems and regularly act in arbitration-related domestic court proceedings.
Whether you are a state, a state-owned entity, a sovereign wealth fund, a corporate, a sports federation or authority, private business or individual, our strategically focused specialists will work alongside you through every aspect of any arbitration. Please contact Thomas Snider or your usual Charles Russell Speechly LLP contact if you would like to get in touch.
