Q: Congratulations on your appointment in ACICA’s Sustainability Taskforce. Given your extensive background in international disputes and climate litigation, what key recommendations do you have for the legal industry to actively contribute to building a sustainable future?  

Thank you – I’m really enjoying being part of ACICA’s Sustainability Taskforce, working with Mark Mangan (an arbitrator and counsel in arbitrations, who authored an article suggesting the concept of carbon scorecards in arbitrations), Amanda Murphy who provides a user of arbitration perspective from BHP’s inhouse legal team (where she is Principal Sustainability & ESG), as well as the really engaged team at ACICA consisting of Deborah Tomkinson (ACICA Secretary General), and Caroline Swartz-Stern (ACICA Counsel). It’s a great team thinking about these issues from the perspectives of the users, practitioners, arbitrators and the institution. This work is an attempt to build on the work of the Campaign for Greener Arbitrations to propose additional ways to encourage a greener arbitration procedure and provide quite granular guidance to users on how to achieve that.

Your question asks what the legal industry can do to contribute to a “sustainable” future. I’ll answer this by referring to sustainability in the context of seeking to lower greenhouse gas emissions, and answer from my perspective as a lawyer and arbitrator thinking about how those involved in international arbitration can contribute to lower emissions practices.    

First, the broader context is the Paris Agreement, which galvanised the commitment of 196 states (more than the New York Convention), to limit temperature increases to well below 2 degrees above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5 degrees. This international consensus of states regarding the need to lower global temperature increases by undertaking rapid reductions in greenhouse gas emissions. This agreement was a signal to the global economy that it needs to move towards a lower emissions future in order to limit global warming.

As a consequence, climate change / sustainability is an issue on the agenda of many users of arbitration and other stakeholders, who are considering how they can reduce the emissions associated with their activities. The arbitration industry is a service provider specifically to business and governments, and many of these businesses and governments have expectations that their service providers are taking actions to reduce their emissions.

Reducing emissions associated with the legal practices of arbitration practitioners (e.g. law firms/ barristers chambers) and their service providers is one place to start, and the other is to consider how the procedure of arbitration itself can be adapted to reduce the associated emissions where the circumstances of the case make it appropriate to do so. Many efforts to reduce emissions also create cost savings for arbitration users (e.g. with less printing/ couriers/ flights). So, by proactively considering how to reduce emissions associated with arbitral procedure, there is often also cost savings for the arbitration users.    

As arbitration practitioners/ arbitrators in disputes relating to high emissions businesses or projects, it can seem that any procedural measures to reduce the emissions associated with the arbitration are inconsequential in comparison. While procedural emissions be small for certain cases, in other cases they can be very considerable, and the relativity of the extent of emissions as compared to emissions relating to the users’ business model or dispute are not a reason for inaction.   

It’s also important that the arbitration community keeps itself educated on the complex and rapidly evolving legal frameworks governing climate change and sustainability issues. I understand that many practitioners feel so busy with their day-to-day practice that they aren’t able to engage with these topics. As participants in an international trade and investment field, and as legal practitioners, I believe we must prioritise being informed on these issues. A good resource is the Law Society of England and Wales’ guidance for solicitors in relation to climate change, released in April 2023. While not directly applicable for many arbitration practitioners in this part of the world, this guidance is nonetheless useful in addressing legal advisers’ and their organisation’s climate impact, as well as how climate change is impacting the solicitor/ client relationship and professional duties for English solicitors.