Interviews
#5QuestionswithMaxwell Green Edition: Cherine Foty
In this #5QuestionsWithMaxwell interview, we feature Cherine Foty, an international arbitration practitioner and Global Co-Chair of the Campaign for Greener Arbitrations.
As Global Co-Chair, Cherine leads efforts to embed sustainability in dispute resolution through initiatives like the Green Protocols, a carbon emissions model, and green action checklists. In addition to her leadership with the Campaign, Cherine continues to advocate for conscious, practical steps that legal professionals can take, whether by reducing travel, adopting digital tools, or integrating sustainability considerations into procedural planning, to make arbitration greener and more efficient.
Cherine advises clients on complex commercial and investor-state disputes, including issues involving ESG, business and human rights, and corporate social responsibility. Her work often intersects with environmental and sustainability considerations in the context of international arbitration and global supply chains.
In this interview, Cherine shares her insights on how the arbitration community has evolved in its sustainability efforts, the Campaign’s upcoming initiatives, and how small, intentional changes can lead to lasting impact.
Download the PDF version of her interview or read the full interview below:
Q: Having been involved with the Campaign since the beginning, what you would say is the most significant change in how the arbitration community engages with sustainability today?
I joined the Campaign early on as others who expressed interest in the commitment to sustainability in arbitration were conceptualizing how it should be structured. I became more fundamentally involved during the drafting of the Green Protocols.
I was lucky enough to work closely with a fantastic group of people to research and draft protocols for each of the primary stakeholders in international arbitration. I would say those protocols really made a significant difference from going from an aspirational view of effecting change with respect to climate change to actually creating clear, actionable steps for members in the industry to follow – whether at an individual level or through procedural actions that can be adopted in the course of an entire arbitration and implemented for all parties. So, for me, the protocols really took it from a more abstract view to something concrete.
Since then, we’ve also developed other materials – like green action checklists and step-by-step guides that practitioners can rely upon.
Q: What’s next for the campaign? And specifically, are there new initiatives planned in Asia-Pacific or elsewhere that we should be aware of?
I would highlight three in particular:
First, we are coming to the tail end of an over a year-long process of creating a carbon emissions model to track and estimate the emissions of international arbitration proceedings. It’s a user-friendly interface, allowing practitioners or other stakeholders in arbitration to input the key elements of their proceedings. From those parameters, they can generate either a calculation or a budget of the carbon emissions that they estimate or aspire to expend during an international arbitration proceeding. That’s meant to do a couple of things – increase visibility around the volume of carbon emissions we are expending in connection with arbitration proceedings, but it’s also meant to allow us to have some impact upon that volume. By knowing what we expend or by setting a goal or target, we can then be conscious about what we’re spending and make some changes in our behaviours that can have an impact on our total carbon emissions.
This aligns closely with the trends of certain institutions. For example, we’ve recently seen the Australian Centre for International Commercial Arbitration (ACICA) adopt a new sustainability protocol, where they provide for carbon budgets as a central piece of the procedural planning process of an international arbitration. So our model actually goes hand-in-hand with those types of developments where we’re encouraging users and practitioners to think critically and consciously about their carbon emissions.
Next, we’re working very closely with institutions, hearing centres such as Maxwell Chambers, and service providers, to think critically about how carbon emissions are understood across the entire course of an international arbitration proceeding. It’s not simply about reducing the printing of paper, but requires critically assessing the amount of waste that is being expended due to the way arbitration proceedings are structured. We have sought to address those issues proactively through roundtables, surveys, and outreach directly to institutions. We have targeted institutions in particular because they are at the center of international arbitration proceedings and have the potential to affect the behaviours not only of arbitrators, but also of parties, counsel, service providers, and hearing centres. We really see institutions as critical to the change we are seeking to achieve.
The third key initiative we have worked hard on is bringing more visibility to the intersection between our procedural recommendations and the wider policy implications of subjects like ESG, sustainability, and climate change issues that are coming up in a legal context. For example, in a series of court decisions and advisory opinions on climate change issues, in the context of environmental due diligence, and in the way in which companies, including now potentially service providers of a certain size, assess the implications of their behaviours from a sustainability perspective. This includes the work being undertaken by our Corporate Task Force to assess these sustainability issues from the lens of the clients we serve by highlighting the parallels between cost, time, and emissions efficiencies.
Those three initiatives are really central to the Campaign’s ongoing work.
Q: What tools or devices do you rely on during hearings to keep things efficient and sustainable?
Case management platforms are very helpful. Having documents in one centralised location, including minimising the electronic storage associated with having documents stored in multiple places, brings efficiency, cost, and time savings. Using a trial technician or hot seat operator to be able to display documents and images on the screen at an arbitration hearing is not only effective from a sustainability standpoint, but also helpful as an advocate to be able to efficiently interact with the content of the document, and achieve greater efficacy in one’s advocacy than with a hard copy document.
I would also highlight minimising travel as much as possible, because travel has such a significant impact on the waste of a proceeding. It is important to think critically about whether five in-person meetings with a witness or expert is needed in advance of a hearing, or whether initial meetings might be conducted virtually. Of course, some preparation could be more efficient in-person, but other types of preparation may be more effective virtually. It is essentially a balance between preparation strategy and sustainability, but just adding that additional layer of critical consideration as to whether travel is in fact necessary in every instance can go a long way.
Q: From your experience, what day-to-day practices by counsels, parties, or institutions can make the most meaningful difference in promoting greener arbitration?
Individual action is important but affecting change at an institutional level can have a far greater impact. For example, having arbitrators incorporate some sort of sustainability considerations into their Procedural Order No. 1 at the outset of a proceeding or reviewing those issues during the case management conference or procedural conference, can have an enormous impact. If the arbitrator sets a standard that all procedural conferences will by default take place via video conference, the parties will be encouraged to have counsel appear virtually. They may also be encouraged to consider having certain witnesses or experts appear virtually if it makes sense for a particular proceeding.
The tribunal could also set a standard by declining to request paper copies of pleadings and exhibits which can result in significant air freight travel emissions. When arbitrators are thinking critically about these issues at the outset of a proceeding and setting the standard and the tone for what is expected, they will have an impact not only on their own conduct, but also on the conduct of other actors in an arbitration proceeding. And if institutions are encouraging arbitrators to engage in that type of standard-setting for each dispute, imagine the number of arbitrations that can be implementing these types of behaviours and making a significant reduction in emissions.
So I think institutionalising these considerations and having them at the very least discussed at the outset of a proceeding, even if the parties are free to decline to actually adopt them, encourages visibility of this issue, encourages changed behaviours, and ultimately has an impact on the amount of emissions that are expended in an arbitration.
Q: How do you incorporate the Campaign’s recommendations into your practice as an international arbitration lawyer? Any examples of how the protocols and guidelines have influenced your day-to-day approach as a practitioner?
So my number one rule is not to print. Wherever possible, I try to review electronically. In some instances, I will make an exception to that rule to print a critical document that I will repeatedly use in an arbitration, for example key briefs of the case or an expert report, or an underlying contract. However, with time, I have found that an appropriately annotated and easily examinable electronic version can have equal efficacy for review and consultation purposes. Aside from those key materials, I try not to print documents or conduct hard-copy document review.
The other main rule I try to stick with is reducing travel and trying to travel with purpose. So to the extent there are multiple benefits to be gained from travel, I try to combine them to be more efficient, and pack in many different things in a single trip, so that I avoid unnecessary travel and its associated emissions.
And the third main rule is raising awareness on a daily basis. I think this is true even for other types of change that we’re trying to affect in the industry, whether that’s gender representation or diversity in counsel or arbitrator makeup. I think raising awareness is the first key step. So it is important point to make colleagues and arbitrators conscious of these issues, for instance by raising the Green Protocols, raising the Campaign for Greener Arbitrations, encouraging the inclusion of references to sustainability in draft procedural orders, and referencing cost and time efficiencies in parallel with sustainability consciousness. All of those efforts are crucial for creating greater familiarity with some of these issues such that individuals are compelled to act, to transition those ideas into practice.
That’s really what the Campaign attempts to do: to say, you don’t have to go from zero to 100%. You can take interim steps; you can change one thing about your behaviours. We really do try to encourage that as a starting point. And oftentimes, you find that people that begin with those little steps end up being some of the most proactive individuals in the long run, because they’ve thought very critically about how to do it.
