More than you think.
“We can’t save the world by playing by the rules, because the rules have to be changed. Everything needs to change – and it has to start today.” Greta Thunberg
This article will consider green dispute resolution procedures, and how we can use them in adjudication.
COVID-19 has already pushed us towards greener ways of dealing with disputes. Documents are now almost exclusively served electronically and not in hard copy, so no or little paper. Communications take place by email. Site visits have had to be drastically reduced or done away with altogether. When they do take place, numbers are strictly limited. The default position now is that hearings are taking place via video link. The latter two have the side effect of reducing travel, and hence carbon emissions. Many of these changes are likely to continue once the pandemic has passed.
Should we be considering, however, going further? Should we be thinking about incorporating more formal green procedures into adjudications, and possibly writing them into contracts, or agreeing them as part of the adjudication process, or should adjudicators be requiring them from the parties in orders for directions?
Green initiatives are multiplying in every area of business. Here are two which deal with disputes and which will be of interest to the adjudication world.
The Chancery Lane Project
The Chancery Lane Project is a gathering of lawyers from across the world who come together regularly to draft “green” precedent contract clauses, which they make available free of charge in a Climate Contract Playbook. It is a fascinating document, and well worth a look. They draft clauses for all sorts of contracts, employment, construction, planning, insurance, project finance, the list goes on. Each clause is named after a child, as a reminder of why these clauses matter.
The Chancery Lane Project has produced green litigation and arbitration protocols, called Emilia’s protocols.
Each protocol is divided into modules which govern each stage of the litigation or arbitration process but each module contains similar principles.
The suggestion is that parties should opt into the protocol at the start of the dispute.
As one would imagine, both protocols emphasise that paper documents should be avoided wherever possible. Documents come in various forms. So for example, the protocols have detailed provisions dealing with communications between the parties, to and from the court or tribunal, with third parties and within legal teams. There are also recommendations for dealing with document production and disclosure. If documents are printed out, they should be printed double sided and on A5 paper.
How to deal with hearings is again an important part of both protocols with the emphasis being on conducting hearings remotely where possible and, in arbitration, considering whether a document only procedure might be suitable.
Where the protocols get more interesting is where they go beyond these administrative steps, which are relatively easy to adopt and which are already being widely used.
The parties commit to minimising unnecessary travel, and to travelling to hearings in an environmentally friendly manner as possible, for example using hybrid or electric cars. Parties also commit to using best endeavours (a hefty obligation) to offsetting carbon emissions associated with air travel to and from hearings.
The settlement provisions are intriguing and there are two unusual items to be included in settlement discussions. Firstly, the parties agree to consider, as part of the settlement, how they can take steps to offset the climate impact of the dispute. They also agree to consider charitable initiatives as part of the settlement. As it is usually the aim of one party to pay as little as possible, and the aim of the other to be paid as much as possible, adding extra payments or obligations may make settlement more tricky. But it is certainly something worth considering, and these do not have to be large commitments.
Finally, when the dispute is over, the parties commit to considering how they can take steps to offset the climate impact of the dispute.
When I read this initially I imagined having to sit down with the opposing team to discuss offsetting over coffee and biscuits (not individually wrapped of course), something that would be the last thing on my to do list after a hard fought dispute where the parties are at daggers drawn. But while ideally this should be done together I think it would be more practical for each party to do this separately and on their own. Perhaps something like planting a tree (or trees) as a way of marking the end of a dispute would be something positive to enable the parties to draw a line and move on?
The Chancery Lane Project also has a low carbon arbitration hearings clause, Mia’s clause. This clause is designed to be included in contract documents with the arbitration clause. It goes well beyond reducing paper and travel. It commits the parties to concluding the arbitration having regard to the Campaign for Greener Arbitrations’ Green Pledge. The parties have to submit a plan to the tribunal for minimising the carbon footprint of the arbitration, and discussing and agreeing on how to manage the carbon footprint of the arbitration. It also involves some far reaching sustainability commitments, for example requiring the parties to disclose their total emissions for air travel conducted by anyone involved in the arbitration.
The Project also produces Toby’s clause. This commits the parties to purchasing carbon offsets or planting trees to offset the greenhouse gas emissions arising from the procedure to resolve the dispute.
The campaign for greener arbitrations
This organisation asks arbitrators to commit to eight principles in conducting and managing arbitrations in a sustainable way. As well as the usual documents and videoconferencing provisions, the principles include “Creating a work space with a reduced environmental footprint by looking for opportunities to reduce energy consumption and waste”, and “Using, where possible, suppliers and service providers who are committed to reducing their environmental footprint (including for the purposes of arranging an arbitration hearing). These commit arbitrators to running their own businesses in a more sustainable way.
The campaign has recently launched a consultation on green arbitration protocols. These are well worth a look, and adjudicators may want to consider adopting some of the practices recommended.
They are also very wide ranging and go way beyond the conduct of an arbitration. Some of them commit parties and their advisors to wide ranging changes in business practices across the board, even in areas unconnected with arbitration work.
The Green Protocol for Law Firms, Chambers and Legal Service Providers has a very long, and detailed, list of requirements, right down to not using teabags, or not providing note pads in meeting rooms, and holding at least one event per year to educate and encourage green behaviours.
The protocols are:
- Framework for the Adoption of Protocols
- Green Protocol for Arbitral Proceedings and Model Green Procedural Order
- Green Protocol for Law Firms, Chambers and Legal Service Providers working in arbitration
- Green Protocol for Arbitrators
- Green Protocol for Arbitration Conferences
- Green Protocol for Arbitration Hearing Venues
- Green Protocol for Arbitral Institutions
All of these will be of interest to adjudicators, particularly the Model Green Procedural Order, elements of which can be used in adjudication.
The model, as one expects, deals with minimising printed documentation and minimising travel. It requires documents to be disposed of in an environmentally friendly way such as composting or recycling. But it goes beyond that. My favourite commitment amongst all of them is where the parties promise to endeavour to work with hearing centres that, among other things, use plants. Although perhaps my vision of arbitrating in a plant filled oasis may not be realistic, it certainly does make for a much more pleasant working environment. And I have been prompted to give my desk spider plant a bit more love and attention.
Many of these are aspirational and may stray beyond what an arbitrator can reasonably order the parties to do. Once a dispute is over, for example, I am not sure the arbitrator is in a position to have power over how the parties dispose of documents, or what sanctions might be applied.
Green adjudication?
What can adjudicators, and parties, take from these revolutionary new ideas about the manner in which disputes are to be conducted?
In the more leisurely world of litigation or arbitration there is the time to discuss sustainability protocols, but adjudication is designed to be a fast, rough and ready procedure for restoring cash flow, and often there is not the time or the inclination to indulge in provisions about sustainability or green conduct. Once an adjudication is started there is little or no time to discuss whether you should use a plastic stirrer in your tea. And there isn’t time to waste beforehand considering how many plants might be around in the event of a hearing, given the short timescales involved.
However, virtually all adjudications are now being run using electronic documents and communications, hearings are being held remotely, and we are moving towards a more sustainable way of doing things. Although we have been forced to do this by the pandemic, these ways of doing things are likely to continue in most cases. The low value dispute adjudication procedures introduced by a number of adjudication bodies limit, for example, the amount of documentation that can be use in an adjudication and the length of submissions. The side effect of these is to reduce paper and resources being used in the adjudication. Arguably, in many ways, adjudication is already ahead of the green game.
Adjudication is a creature of statute and adjudicators are bound be extremely strict rules as to what they can do. There is limited room for manoeuvre.
There are areas however where sustainability considerations could be usefully applied during the course of an adjudication, and perhaps the prime example of this is the site visit.
Site visits often take on a life of their own, with numerous individuals clamouring to attend. This involves travel and carbon emissions.
Adjudicators are already limiting numbers attending site visits because of the pandemic, and there is no reason why numbers cannot be limited for environmental reasons. Lawyers always want to go, but often add nothing useful to the party. I enjoy going on site visits, but me seeing a defective roof, or looking at mechanical and electrical installations, or traipsing around a warehouse, does not contribute in any way to the dispute or the adjudicator’s decision making. In my view, adjudicators are more than capable of conducting a site visit, and of keeping the parties in line if required.
But the actual adjudication itself is only part of the process.
Adjudicators might want to look at their terms and conditions to review what green provisions they might usefully be able to add. Why not, perhaps, consider adding to your terms and conditions a provision including the costs of offsetting travel in your expenses? Or a commitment to using the greenest travel options, and charging the costs for those, instead of a simple mileage rate?
And adjudicators can also look at their own business practices. Do you use recycled paper? What about printing? How do you dispose of printing cartridges? What ink do you use? How do you travel?
Is there a role here for the ANBs? Could they introduce a requirement for adjudicators to commit to sustainable business practices before getting a place on the panel?
Parties might be able to write green provisions into adjudication clauses in contracts. Consider, for example, requiring electronic documents, communications and service of notices by email, remote hearings? How about a clause committing the parties to minimising the environmental impact of an adjudication? Or to considering offsetting the environmental impact of the dispute afterwards? I accept that many of these clauses are aspirational, but encouraging sustainable business practices is a positive.
I would recommend taking a look at the Chancery Lane Project and the Campaign for Greener Arbitrations to see if there are things there that you can incorporate into your conduct of adjudications.
At the moment, we are in crisis mode. The end, we hope, is nearly in sight, and when we emerge from the pandemic, I believe that there is going to be a culture change and a move towards more sustainable business practices everywhere. While adjudication is, in many ways, at the forefront of that culture change, there is always more that can be done. Small changes to our practices, done together, will have an impact.
“A journey of a thousand miles begins with one step”. Lao Tzu
This article was first published in the Adjudication Society Newsletter.