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ESG and dispute resolution: fighting for greener ways

By Daniela Bassan, K.C.

All stakeholders in the legal profession, including litigators, have a shared interest in promoting environmental, social, and governance (ESG) pathways towards building a greener society. It is crucial for litigators to actively advocate for ESG outcomes as an integral part of their dispute resolution practices. By incorporating ESG considerations into their legal strategies, litigators can contribute to the advancement of sustainable practices, social responsibility, and ethical governance. Recognizing the importance of ESG principles in resolving disputes can help shape a more just and environmentally conscious legal landscape, benefiting both the parties involved and society as a whole.

Campaign for Greener Arbitrations

One of the first initiatives in this area was the Campaign for Greener Arbitrations, which was founded in 2019 by international Arbitrator Lucy Greenwood.  The Campaign’s Green Pledge has the following objectives:

  • raising awareness of the significant carbon footprint of dispute resolution;
  • addressing the need for environmentally sustainable practices in arbitration; and
  • encouraging all arbitration stakeholders (from lawyers to tribunals to parties themselves) to commit to reducing their carbon footprint whenever they arbitrate their disputes.

As of May 2023, there were 1414 signatories to the Campaign.

The Campaign has published a framework and set of detailed protocols to guide stakeholders in their adoption of more environmentally friendly practices and procedures.  For example, the Green Protocol for Law Firms, Chambers and Legal Service Providers Working in Arbitration sets out sustainability measures that can be adopted into a service provider’s workplace and integrated with regular business operations.

Suggested sustainability measures cover a wide range of topics, including: (1) reducing energy consumption and environmental footprint through use of smart technologies and eco-friendly practices in workplaces; (2) implementing paperless and digital solutions for onsite and offsite work environments; (3) restricting use of single use items and plastic at work related facilities; (4) actively partnering with and preferring suppliers (caterers, couriers, marketers, etc.) with stated commitments to greener practices; (5) travelling responsibly and/or opting for remote attendance for work-related conferences, meetings, etc.; and (6) reporting publicly on progress made in order to promote transparency and accountability.

Greener Litigation Pledge

The Greener Litigation Pledge was inspired by the Campaign for Greener Arbitrations and proposes that climate change should be at the core of how litigation is undertaken in the courts of England and Wales.  Specifically, the Pledge recognizes the importance of restricting global warming to 1.5°C, as identified by the 2015 Paris Agreement.

The Pledge now has 75 institutional signatories and is working to establish more jurisdiction-specific Pledges and Greener Litigation groups. For example, in Fall 2022 Italy announced the arrival of the Pledge in that country.

The Pledge has recommended approaches for both pre-litigation and litigation phases before the courts.

The following wording is suggested to govern sustainable conduct by litigators at the outset of a dispute:

It is in all the parties’ interests to conduct this dispute in a sustainable manner.*  Accordingly, where possible and appropriate, we intend to use secure electronic means for communication and correspondence; to use electronic bundles and to avoid unnecessary travel by the parties and their legal representatives. We would welcome your agreement to conducting this matter in this way or your views on how the parties could conduct this dispute in a sustainable manner.

* Please note that [Firm name] is a signatory to the Greener Litigation Pledge

For case management during the course of litigation, there is proposed wording for court directions along with an umbrella statement that “the parties agree to have regard to the environmental impact of these proceedings and to take all reasonable steps to reduce the same”.  There are also a number of suggested sub-points on how to make day-to-day litigation activities greener.

Other initiatives led by lawyers and committed to reducing the climate impacts of the legal sector:

  • Lawyers for Net Zero which is a not-for-profit that recognizes the opportunity for in-house lawyers to be a critical interface to support their organization to deliver significant and rapid climate action.
  • Net Zero Lawyers Alliance which is a coalition of international law firms committed to accelerating transition to net zero emissions by 2050.
  • Legal Sustainability Alliance which is a not-for-profit sustainability network run by law firms for law firms.
  • Global Alliance of Impact Lawyers which is a community of legal leaders who are using the practice of law to have a positive impact on people and the planet, and to accelerate the just transition.
  • ClientEarth is an environmental law charity with a mandate to use the power of law to bring about systemic change that protects the earth for and with its inhabitants.

Green Takeaways for Dispute Resolution

What are some takeaways from these inspired initiatives?

First, education and awareness of these campaigns will assist in spreading the word among stakeholders and avoid reinventing the wheel. For example, there are regular webinars, presentations, and remote networking opportunities available for sharing and acquiring technical knowledge in this area. Efficiency in the identification and adoption of common sustainability measures means longer lasting impacts on dispute resolution environments.

Second, these initiatives generally promote a ‘tip to tail’ approach in the ‘greening’ of dispute resolution.  A holistic approach to sustainability, starting with the opening of a dispute dossier and lasting long after the resolution of the matter, should be the ultimate objective.

Third, there is often a need for structural changes to the supporting mechanisms, platforms, and systems where dispute resolution is conducted. This requires modifying (and in some cases overhauling) physical spaces, cyber spaces, and human spaces all with a view to ensuring the most efficient use of sustainable features.

Fourth, individual accountability within an institution or workplace can help drive a more collective approach to embracing permanent changes. Green champions in an organization may be able to jumpstart the changes needed for incremental progress and eventually long-term solutions. Those individuals are more likely to succeed if given the tools and resources to make ‘greener’ things happen.

As more of these initiatives are launched, and an increasing number of lawyers and law firms become members, stakeholders will want to measure ESG outcomes, assess climate data reporting, and evaluate progress toward their stated mission.

This client update is provided for general information only and does not constitute legal advice. If you have any questions about the above, please contact the author.

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