Interviews
#5QuestionswithMaxwell Green Edition: Jessica Crow
In this #5QuestionsWithMaxwell interview, we feature Jessica Crow, independent arbitrator and Co-Chair of the Innovation and Policy Taskforce of the Campaign for Greener Arbitration. She also acts as an international law consultant and academic researcher, specializing in Energy and Natural Resources, Climate Change and the Environment, International Dispute Resolution and Public International Law.
She is also a member of ICC Canada, a member of the Chartered Institute of Arbitrators ADR & Sustainability Specialist Group Steering Committee and sits on the Advisory Committee of the Young Canadian Arbitration Practitioners (YCAP).
In this interview, Jessica shares sustainable practices she incorporates into her work as an arbitrator, and her perspectives on how arbitration will evolve in the context of global energy transition. She also shares valuable insights for the arbitration community, on ways to contribute to a greener future and discusses the role of technology in advancing sustainable practices.
Download the PDF version of her interview or read the full interview below:
Q: What are some sustainable measures you have integrated in your work as an arbitrator? Are there specific measures you would particularly recommend from The Green Protocols for Arbitrators?
I’m a firm believer in the paperless arbitration approach, using electronic bundles and encouraging parties to limit hard copy submissions or eliminate them all together. As an arbitrator, I find it is much more efficient to work with electronic files that I can organize, mark-up and save in the cloud. When I travel for a hearing, all I need is my laptop, iPad, and occasionally a flat pack external monitor to bring up documents or view hearing transcripts. Not only is it more efficient and cost-effective, but it is also extremely convenient to travel light.
As Co-Chair of the Innovation and Policy Taskforce of the Campaign for Greener Arbitrations, I’m part of a team that is actively involved in developing and promoting sustainable practices within the arbitration community. Our Taskforce is developing a tool to evaluate the carbon footprint of an arbitration for the wider arbitration community to use – developed by the experts on the Innovation team and informed by the research and experience of the Policy team. Once launched, this tool will help assist arbitrators and parties who want to quantify and address their environmental impact, providing a concrete means to measure and reduce the carbon footprint of arbitration proceedings.
From The Green Protocols, I particularly recommend the measures related to travel. When in-person hearings are necessary, parties are encouraged to consider the environmental impact of travel and hearing logistics. I’m also a strong advocate for the protocol’s recommendation to use video conferencing for case management conferences and procedural hearings. These small changes can have a significant cumulative impact.
Q: Given your experience in disputes related to energy, climate change and the environment, how do you see the role of arbitration evolving in the context of the global energy transition?
Arbitration will play a crucial role in resolving disputes arising from the global energy transition. This is evident from the year-end statistics provided by the arbitral institutions: the users of arbitration are overwhelmingly represented in heavy-emitting industries such as energy, construction and natural resources. These industries are at the forefront of climate regulation impacts. As these sectors adapt to stricter greenhouse gas mitigation targets, face pressure from climate litigation and ware generally impacted by changing planetary conditions, we can expect a knock-on effect to existing commercial relationships, asset valuations and much more.
The disputes bound for arbitration are likely to center around the implementation of new technologies, disruptions to infrastructure projects and supply chains, carbon pricing and carbon market viability. In the investor-state context, we’re already seeing cases involving fossil fuel investors challenging climate policies and renewable energy investors disputing changes to incentive schemes. Arbitration offers unique advantages for these complex, international disputes. It provides a neutral forum with flexible rules and allows for the selection of arbitrators with relevant expertise in energy, climate, and environmental law.
Arbitration will need to evolve to address challenges specific to climate-related disputes. These include balancing confidentiality with public interest, ensuring stakeholder participation, and developing mechanisms to handle the complex scientific and policy issues inherent in climate change matters. The adaptability of arbitration will be key to its effectiveness in this evolving landscape.
Q: How can the arbitration community, including young practitioners, drive further progress towards sustainability in arbitration?
The arbitration community, and especially young practitioners, can drive significant progress towards sustainability in arbitration by leveraging its unique position at the intersection of international investment, cross-border business, dispute resolution, and climate change issues. Education and awareness are key, and it is important for practitioners to level up their skillset in this crucial area of the law.
Embracing technological innovation is another vital step. By adopting technologies that facilitate remote hearings and electronic document management, the community can reduce the carbon footprint of arbitration proceedings while increasing efficiency. This goes hand in hand with institutional change, where collaboration with arbitral institutions can lead to the incorporation of sustainability considerations into rules and practices, such as the provision for expedited procedures in climate-related disputes where time is of the essence. In fact, many of the major institutions have, or are in the process of, studying and instituting climate-related considerations.
Client education plays a crucial role in this evolution. Practitioners can advise clients on the benefits of sustainable arbitration practices and the potential risks associated with climate change in their industries. This includes helping them understand evolving standards of corporate climate accountability, litigation risk and the importance of robust climate due diligence.
These are just some examples of ways in which the arbitration community can play a significant role in driving sustainability not just within its own practice, but also in the disputes it handles and the industries it serves.
Q: Are there any case management tools or technology tools that are essential to you during a hearing?
Just my laptop, iPad, and my Cloud drive.
Q: How does your experience and research in climate law and environment policy influence your approach towards greener arbitration?
My experience and research in climate law and environmental policy profoundly influence my approach to greener arbitration. At Cambridge, I am fortunate enough to work alongside leading scholars in climate science, policy, economics, and law, giving me a deep understanding of how human activities are pushing us beyond critical planetary boundaries and approaching irreversible tipping points in the Earth’s systems, which makes the need for sustainable practices in all sectors, including arbitration, more urgent than ever.
Understanding the complexities of climate governance helps me appreciate the diverse stakeholder interests and perspectives in many disputes. This informs my approach to case management, encouraging inclusive and sustainable practices. My work keeps me updated on the latest environmental laws and policies, crucial for handling disputes affected by evolving climate and energy regulatory landscape. The long-term perspective inherent in climate change research also influences my approach. I apply this long-term thinking to arbitration, considering not just the immediate efficiencies of greener practices, but also their long-term impacts on the field and the environment.
This interdisciplinary and forward-looking approach allows me to contribute to shaping an arbitration practice that is not only responsive to current climate challenges but also adaptable to the evolving landscape of climate and environmental law.
