Green Arbitration: The Uncharted Road Towards Sustainable Arbitration

Introduction

Recently we have seen various discussions happening around green arbitration wherein experts and stakeholders are trying to adopt the best practices to reduce carbon footprints and minimise the environmental damage that takes place during an arbitration. Viewing contemporary scenarios, the structure of our cognitive functioning is based on scenarios that act as catalysts in causing an impact on the environment and natural resources. Making corporate social responsibility (CSR), sustainable development goals (SDGs), and ESG (economic, social, and governance) are some steps taken by organisations to protect the environment. Even the courts have taken few initiatives to reduce the carbon footprint. Meanwhile, international arbitration has started with its green arbitration procedures as the traditional methods of conducting arbitration are detrimental to the environment.

Progressively businesses are additionally making “net-zero” commitments and rethinking their activities, operating in a new regulatory landscape of increased environmental, social, and governance responsibilities. Lucy Greenwood brought attention to driving sustainable change by campaigning for the Green Pledge in 2019. It is an initiative that is taken by the arbitration fraternity to reduce the environmental impact and carbon footprints all over. Experts find that as many as 20,000 newly planted trees offset the total carbon emissions from just one large-scale international arbitration. However, there is little to no discussion about climate change in the arbitration in India. As a result, we lack sustainable arbitration practices which enable our increasing collective carbon footprint. Factors giving rise to carbon footprint, some of the practices include printing lengthy submissions, travelling to-and-fro by various witnesses, experts, advocates, and the arbitral panel; even using multiple disposable coffee cups throughout the proceedings to printing out hard bundles. The reason for this boils down to our tunnel vision focused on today and not the future. What we fail to realise is the fact that our actions today will have far-reaching consequences for future generations.

The Supreme Court of India has recently made modifications in the case filing procedure such as the use of A4 size papers while reducing the number of copies from 4 to 2. Similarly, many law firms in India have installed solar panel offices, and universities are enforcing green campus plans and encouraging the use of recycled papers. It is essential that stakeholders endeavour to minimise their carbon footprint built on the guiding principles of raising awareness. Earlier there was no culture of sustainable arbitration practices, however, major changes took place when the world was hit by COVID-19. The quarantine related short-term developments obliged the participants to embrace technology in a more thoughtful and considered manner. COVID-19 has lowered emissions and made many people’s paths to carbon neutrality much easier, though rather unintentionally, by drastically reducing global travel. Thus, keeping in mind those affected by climate change, the fraternity should encourage and promote greener practices while recognising the efforts of those already working towards sustainability and net zero carbon emissions.

Arbitration and its initiative regarding carbon emissions

To mitigate climate change, the first step is to adopt greener policies. Adoption of such policies would require arbitrators and institutions alike to enforce greener arbitration practices such as the following:

1. A transition towards virtual hearings

The choice of a virtual rather than an in-person interaction has an impact on sustainability. Sustainability measures are similar to those used during the COVID-19 Pandemic as formerly stated above. To tackle the worldwide issue, the arbitration community transitioned from physical hearings to online hearings which prevented the spread of infection while simultaneously reducing the fraternity’s collective carbon emission. Some of the arbitral institutions have created their own set of rules/protocols for remote hearings as online platforms gain popularity. In the same spirit, we must acknowledge the environmental benefits of virtual hearings and adopt a more permanent transition towards the same.

Such a shift entails the use of video conferencing facilities to avoid unnecessary travel, limiting travel to necessity, efforts to make webinars the norm while hosting limited in-person events, and adopting fast-track procedure i.e. document only arbitration. Even when it is necessary to travel, then carbon offsetting for arbitrators’ flights must be encouraged.

It is crucial to note that a changeover of this manner raises concerns regarding cybersecurity, cyber threats, and infrastructure. Fortunately, the issue of cybersecurity has received much attention in the arbitration community which presents a promising landscape for greener policies in the field of arbitration. Concerning infrastructure, it is important to view the long-term profits of curtailed costs due to reduced flight travel and accommodations with the limited expenditure on infrastructure and upkeep. The arbitration fraternity can also pledge towards greener arbitrations by having certified green buildings.

2. Going paperless

Arguably a consequence of going virtual, another approach to alleviating carbon emissions is to reduce or limit the use of hard copies. Arbitral institutions, for instance, may encourage the use of robust technology to enable paperless case management. Further, arbitrators and institutions can discourage the use of paper during the procedural order, use printouts on a necessity basis, correspond through e-mails, and promote electronic bundles and not hard bundles at hearings.

3. Moving towards net-zero consumption of energy

Workplaces looking to go the extra mile while fighting climate change must look at ways to efficiently reduce energy consumption, improve waste disposal and management, and invest in the use of clean/renewable forms of energy. The quicker a dispute is resolved, the less the generation of carbon emissions. When deemed necessary, workplaces should encourage calculated travel to stay in line with the goal of sustainability. For example, the trade-off between a quick flight and a train journey should factor in the environmental damage alongside ease of travel. Moreover, the parties could be encouraged to produce carbon emission scorecards while the Arbitration Tribunals allocate the result, by a reduction in the awards or cost of the procedural conduct. This method would encourage the participants to know about the carbon emissions produced in a proceeding and thereby how to minimise them. The parties could also opt for carbon market forces to bear the carbon emissions during the proceeding to achieve net-zero arbitration.

Conclusion

There are guidelines and policies present for the reduction of carbon emissions and greener arbitration, it is ultimately on the parties to bespoke upon their greener procedures. Institutions must comply with the legal frameworks and guidelines brought to combat climate change. At the commencement of every transaction and even after disputes have taken place, parties are recommended to think about conflict resolution mitigation and resolution strategies. The pandemic has proven that arbitration proceedings can be converted into greener methods and such sustainable methods shall continue not only in quicker and cost-efficient ways but also for safeguarding the interest of our future generations. The advancement in technology will play a bigger role going forward. It will also help in making the process more robust, reduce carbon footprint, authenticate evidence, and even examine our logic and thinking. Initiatives should be taken to spread awareness about the best practices in arbitration to reduce carbon footprint. At the end of the day, it is purely left for the greener conscience of the parties to the proceeding.