International Arbitrator, Counsel, Consultant

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A Zero-Impact Arbitration? Let's talk

As an arbitration community, we have talked a lot about how we might arbitrate climate change issues. We have not spent the same amount of time talking about how as a community we might address climate change.

In 2019 let’s talk about climate change and arbitration, not as an opportunity to generate more work, but as an opportunity to do some good.

Last week I spoke at London International Disputes Week on technology in arbitration. As part of my preparations for my talk I not only researched what technology is available to assist the arbitral process but also considered at some length how we are using that technology. When I considered the question as to which technology we use most to facilitate arbitration, I came to the slightly depressing conclusion that it is email - which happened to be invented the year I was born. Frankly, not a lot has changed since then. We are not embracing paper-less arbitrations, we are not taking advantage of the video conferencing/screen sharing platforms to deliberate remotely, we are not thinking critically about using video conferencing extensively for witnesses. The technology is there to help us run arbitrations more effectively. It is also there to help us reduce the carbon footprint of an arbitration. For both reasons we should be embracing change in the way we operate.

Recently I was chair of a large arbitration in which the parties made sure that every exhibit was seamlessly beamed to the large screen in front of every participant in the arbitration. Although we had requested hard copies of the arbitration bundles, at no point in the entire two week hearing did anyone reach for a document, because the technology used was so effective. This should be the norm in arbitrations and hard copies should become a thing of the past. After the Fukushima disaster, Japan cut its energy use by 15%, largely by getting companies to raise the air conditioning thermostat. Having lived and worked in Texas for many years, I am all too familiar with shivering at my desk while it is 90 degrees outside. Adjusting the air conditioning is a small change that we can make during an arbitration if we think about it.

Of course the biggest impact we can have is to reduce the number of flights we take. As arbitrators, we can ask the parties whether the witnesses really need to attend in person or whether their evidence can just as easily be taken by video. If we, as arbitrators, take the lead in suggesting this to both sides, then it will make it much easier for parties to agree to minimise travel in this regard. Similarly, it should be the norm for any follow up deliberations to be conducted through video link using screen sharing technology to discuss evidence. Use a carbon calculator to see the effect air travel has. A couple of long haul flights can double your carbon footprint. All the good done by daily recycling can be wiped out by one international flight. Let’s develop an international arbitration mindset that questions the need to fly.

I suggest the following charter for every arbitration, a Greenwood Pledge for Green Arbitrations if you will:

As an arbitration practitioner committed to ensuring that I minimise the impact on the environment of every arbitration I am involved in I will ensure that, wherever possible:

  • At all times during the arbitration I will consider and question the need to fly;

  • I will not request hard copies of documents to be provided to me;

  • I will strongly discourage the use of hard copy bundles in hearing rooms;

  • I will suggest, where appropriate, that witnesses give evidence through video-link rather than attend hearings in person;

  • I will review the level of air conditioning in hearing rooms;

  • I will not travel unnecessarily to deliberate with my co-arbitrators, and will use screen sharing/video technology instead;

  • I will offset the carbon emissions of any flights I make to arbitration hearings.