The author, Chandril Chattopadhyay, is an Advocate at the Calcutta High Court.
Assisting him in researching for this article are SK Majid Ali and Sadia Sultana, students of the Department of Law, University of Burdwan.
“Only once we achieve a balance between awareness, debate and empirical data will the international arbitration community be more enlightened on the issues of efficiency, equality and the environment and start to achieve the real change.” – Lucy Greenwood
The modern-day environmental movement gained momentum in the mid-20th century. The over-exploitation of natural resources has led to a rise in carbon footprint. This has been a global phenomenon in the late 20th and 21st century. The growth of science, technology, industry and development is the main cause. The impact on the environment is intimidating. It is causing serious and ceaseless headaches to every nation. The availability of natural resources for future generations is a growing concern. There is also a concern about carbon catastrophe due to pollution. Environmental consciousness has had a far-reaching impact on various industries, including the legal sector. The environment is not confined by political borders and is a collaborative project among nations. While the COP of the United Nations Framework Convention on Climate Change (UNFCCC) has made institutional and administrative arrangements for member States to ratify different environmental laws, new gaps are emerging to counteract the issue of rising carbon emissions and pollution. Environmental law has expanded to cover regulatory frameworks, and there have been active movements towards corporate social responsibility.
Lucy Greenwood, environmental activist and arbitrator initiated the Green Pledge movement in 2005. The movement encourages people to make personal communities to make sustainable living choices and reduce their carbon footprint. It has evolved into different pledges and addresses different challenges; all of which often focus on reducing waste, conserving energy, promoting renewable energy resources and advocating for environmental policy changes.
The Green Pledge has raised awareness about the environmental impact of legal practices. It has encouraged legal professionals to integrate sustainability and develop greener legal services. This includes encouraging clients on environmental laws compliance, sustainability reporting, renewable energy projects, and climate change mitigation strategies.
The movement has more than 2000 signatories now. It has trained legal professionals and promoted legal education for this cause. It has catalysed positive changes in both the legal profession and environmental sustainability efforts.
Lucy Greenwood also leads the Green Protocols initiative, which established guidelines for a more eco-friendly and sustainable arbitration process. As part of this initiative, she has launched a new campaign to promote greener arbitration from 2024 to 2026.
Arbitration and the environment intersect in various ways. Environmental disputes can be resolved privately and efficiently through arbitration, which is less expensive, faster, and more private than litigation. However, arbitration proceedings also have their own set of issues, such as expensive travel, extensive paper usage, and high venue consumption. These problems are now being categorised as environmental risks, and there is a growing awareness in the arbitration community to make sustainable and equitable choices. Many independent, non-funded arbitrators have stepped forward in response to this awareness. The legal framework and international environmental treaties have also established arbitral bodies or procedures tailored to environmental issues.
Greenwood has brought together several stakeholders as part of the Green Protocols campaign. A steering committee has been formed, and they have created a Framework for the Adoption of the Protocols. The six Green Protocols are available in about seven languages. The Framework provides better strategies to enforce the Green Arbitration methods.
Green arbitration is a recent phenomenon. It focuses on environmental protection. It aims to mitigate and control the problem of carbon footprint caused by traditional arbitration practices. It is an alternative to the traditional approach of arbitration proceedings and is adopted by stakeholders in the arbitration fraternity. It reduces the environmental impact caused by the process of arbitration and addresses serious ecological concerns and environmental disputes. It promotes sustainability, protects and preserves the environment.
The problem of the creation of a carbon footprint in the traditional arbitration process has remained unnoticed for a long term. It has been argued that it requires near about twenty thousand planted trees to counterbalance the carbon emissions generated by a single large-scale international arbitration proceeding.
Mitigation strategies in greener arbitration aim to reduce the environmental impact of arbitration proceedings. Conducting hearings virtually or remotely, participation instead of in-person, minimises the need for travel, thus reducing carbon emissions associated with transportation. Green procurement and e-documents are the initial steps to greener arbitration. Utilising electronic filing systems and digital documentation reduces paper usage, saving trees and reducing waste. Choosing venues and office spaces with energy-efficient features and implementing energy-saving measures during hearings and meetings helps minimise energy consumption. Selecting venues with strong environmental credentials, such as LEED-certified buildings or facilities with renewable energy sources, promotes sustainability. Compensating for unavoidable emissions from travel or energy use by investing in carbon offset projects, such as renewable energy or reforestation initiatives, will help promote the client’s corporate social responsibilities and set a win for all.
The process of green arbitration should be encouraged because firstly, it can eliminate the high amount of cost incurred in traditional arbitration proceedings and make it cost-efficient. Secondly, it can give effective and expert decisions on environmental contingencies at all levels through the process of virtual arbitration proceedings that would be pliable, fair, and unambiguous. Lastly, it would prioritise the notion of sustainable development, making it adopt and enforce environment-friendly legislation or regulations to member States or other corporate or social institutions to ensure a lesser carbon impact on the environment in resolving disputes.
There have been many laws enacted in India in pre-independent and post-independent times that directly or indirectly focus on the protection of the natural environment and resources. But no stringent laws have been enacted directly that can show India’s endeavour in making efforts to enact laws to promote green arbitration. Indian jurisprudence is far from green arbitration. The essence of a pollution-free environment and environment sustenance is seen in the Water Act, 1974, Air Act 1981, and EPA Act 1986. India was the first nation to make CSR compulsory and this has encouraged corporations to participate in greener arbitration. Going paperless and energy efficient are other demands and urges in the context of green arbitration that resonated in the IT Act 2000, which gives equal recognition to virtual records.
It is worth noting that Indian courts have adopted virtual court practices to speed up the delivery of justice during the COVID-19 pandemic. The former Chief Justice of India, SA Bobde, revised the Supreme Court rules to reduce paper consumption by directing the use of A4 size papers and printing on both sides. Additionally, India’s recent pledge to triple its renewable energy resources, as the President of G-20 countries, along with the Energy Conservation Act 2010, which seeks to reduce energy wastage and enhance energy efficiency, have both upheld the spirit of green arbitration at every level. It is evident that Indian legal sanctions have reiterated the need for green arbitration proceedings to be virtual, paperless, cost-effective, energy-efficient, and have less carbon impact by reducing pollution and transportation.
With the penchant to go paperless, there can be additional concerns about cybersecurity and cyber threats. But improvement in IT infrastructure around the world can help mitigate these risks. Online hearings can also be made more environmentally friendly by using green buildings or by providing a carbon-emission scorecard for the parties involved. This incentivises them to be more conscious of their carbon footprint during the arbitration proceeding.
Green arbitration fosters an environmental balance and makes the legal fraternity aware of the implications in a positive way by tendering goodwill to the environment, arbitrators, and all mankind. It can become more effective by training legal professionals to promote its cause. Also, it can make arbitration more effective by modernising international arbitrations by embracing new technologies and practices.
