Green arbitration initiative suggests changes to travels, documents, hearings
The Campaign for Greener Arbitrations has provided a model clause for company outside counsel retention, which legal departments can use to help reduce carbon emissions and other environmental effects associated with managing and resolving disputes.
Legal departments can wholly or partly incorporate the model clause in company guidelines or policies on external counsel, include it in counsel engagement letters, or adapt it as appropriate.
The model clause states that the company has adopted, adheres to, or agrees with the principles expressed in the green pledge and the green protocol for law firms. These are available on the website for the Campaign for Greener Arbitrations.
Under the model clause, outside counsel will try to minimize the environmental impact of resolving disputes, including by corresponding via electronic means, unless the circumstances require hard copy documents.
In terms of travel, outside counsel can:
- question the need to fly or the number of people who will fly
- make reasonable efforts to offset the carbon emissions of flights taken on company matters
- consider lower-carbon-emitting alternatives to flying, such as train travel, virtual meetings, and hearing technology, including for document review, witness interviews, client meetings, and hearing participation
For hearings, outside counsel can:
- consider whether the issues genuinely require a physical or virtual hearing to advance the company’s interests in the dispute or whether documents and written submissions alone can give the basis for deciding the issues
- consider – if a hearing was indeed necessary or advantageous to the company’s interests – whether the hearing genuinely required in-person attendance for all participants or whether they could participate via virtual hearing technology
- discourage using hard copies of documents in arbitrations
- encourage the use of electronic documents
The model clause includes a disclaimer, which states that the green protocols and the framework for adopting such protocols do not impose liability or a standard for liability for legal or regulatory purposes. They are not binding or meant to replace applicable rules or deviate from the arbitration agreement. This is unless the parties agreed to or the tribunal ordered such replacement or deviation.
With the model clause, “[c]orporate counsel are starting to ‘drive the bus’ on the greening of arbitration and procedural efficiency,” said Barry Leon, an independent arbitrator and mediator and former chairperson of the International Chamber of Commerce of Canada’s arbitration committee, in the Canadian Corporate Counsel Association’s In-House Edition.
Michael Mcilwrath, who serves as chairperson of the corporate task force of the Campaign for Greener Arbitrations, is the founder of MDisputes, which offers on-demand in-house legal support to small and large organizations.
The model clause encourages discussion on whether specific procedural steps are necessary or can be streamlined. It includes language consistent with the trend of in-house counsel actively engaging in arbitration with their outside counsel, Mcilwrath said in the In-House Edition.
He added that the members of his task force chose to focus on developing tools to assist in-house counsel in driving real change and have further plans on how to help them with this goal.