1999 called and wants its Procedural Order back
We are now into the third decade of the twenty-first century and it is imperative that we change. International arbitration has to shoulder its share of the blame for the climate emergency and we, as a community, have to act to transform the way in which we manage and run arbitrations.
At a minimum, hard copy bundles must become a thing of the past. Every time we see a Procedural Order which refers to hard copies we should call it out. In the words of one in-house lawyer who was recently faced with a tribunal referencing hard copy bundles in its PO1, “1999 called and wants it procedural order back”.
I chaired an arbitration a couple of years ago where the tribunal insisted on no hard copy bundles, but we indicated that if we required certain documents in hard copy we would request them. The hearing ran very smoothly with pdfs of the documents being flashed up on screens and the tribunal pulling up pdfs of the documents and marking them up electronically on their laptops and saving their comments on their systems. A few observations on the process. First: at least 5 exhibits (none of which, incidentally, were ever referred to during the hearing or at any point in subsequent submissions) were each over 400 pages long. Had hard copies been provided, those documents would have been printed out at least 10 times (copies for the tribunal/court reporter/counsel/witness/clients, etc). Second: my experience with hard copy bundles which are provided at the hearing is that either the tribunal mark up their own hard copies, rendering the hearing hard copies redundant post hearing or they mark up the hearing copies but then don’t take them with them and simply ask for the documents to be shredded at the end of the hearing. Less frequently the tribunal will ask for the documents to be shipped (which obviously requires resources) and sent to their offices, where they will eventually be shredded.
When you think about it the waste involved in hard copies is astonishing. It is not simply the printing of the document, it is the mailing, the managing, the storing, and the eventual shredding of that hard copy. And it’s not just the environmental cost either. When the Green Pledge team assessed the environmental impact of a standard arbitration it found that printing was responsible for only 2% of carbon emissions in an arbitration (albeit a 2% that is easily eliminated) but accounted for 40% of disbursements.
There is no good argument that I can see for complete hard copies of bundles to be provided at hearings. Whilst I fully accept that there may be certain discrete circumstances in which hard copies of particular documents are required in an arbitration, our default approach must change and our default PO1s must change with it. 1999 can keep its Procedural Order. It’s 2020 now.
