Arbitration means flexibility, or so we are always told. But flexibility to do what? To fly around the world attending multiple meetings in remote locations? To create huge bundles of documents for hearings and insist that a full cast of witnesses attend too? It sometimes seems that way.
Lucy Greenwood, an independent arbitrator based in England and Texas, has set the cat among the pigeons by questioning the working practices of arbitration lawyers and inviting them to sign a “Pledge for Greener Arbitrations”: a list of nine things to do, not do or consider doing/not doing when acting as an arbitrator or counsel in international arbitration. (The Green Pledge can be accessed here, for those who wish to know more or to sign.) A bit of innocent self-promotion, perhaps (who wouldn’t turn a name like Greenwood to maximum advantage?), but this is an initiative that carries a serious message. As she points out, the arbitration community likes to talk about how it might arbitrate climate change issues, but seems to have given very little thought to how it might avoid contributing to climate change itself.
Top on her list, of course, is a recommendation that we think first before we fly. As everyone knows, air travel is one of the chief sources of greenhouse gases. Lucy Greenwood also suggests (at the bottom of her list) that we offset the carbon emissions of any flights we take, although who will pay for that is unclear. Inevitably it is the client who, directly or indirectly, will end up footing the bill.
Ms Greenwood is no Greta Thunberg. She does not suggest that lawyers should never fly. If she is promoting “flygskam” (flight shame), it is of a gentle kind; prompting us to “consider and question” the need to fly, rather than simply stop doing it. Her other recommendations are, in any case, more manageable. They mostly refer to documents; that is, documentary evidence and correspondence with the tribunal and other parties, and whether we really need to handle them in hard copy.
I find it remarkable that, more than twenty years after solicitors started working with computers on their desks, so much printing of documents is still done. With the advent of tablets and electronic bundle technology, not to mention computer-assisted document review, the need for hard copies should be very limited now; and yet, arbitration is still paper-intensive, as every client who examines their bills well knows! Perhaps the problem is that an army marches at the speed of the slowest where technology is concerned, and too many arbitrators are not able or willing to handle documents in soft copy only. But it would be wrong to blame arbitrators exclusively. All arbitration lawyers are to some extent to blame.
The question of witness evidence is also central to Lucy Greenwood’s agenda. Do interviews really need to be done face to face, or could screen-sharing or video technology be used instead? Behind this is the more fundamental issue of whether witness evidence is used too much in arbitration, and in particular in a live form. This is not addressed directly in the Green Pledge, but is tackled head on by the new Prague Rules, which go out of their way to say that the tribunal “may decide that a certain witness should not be called for examination during the hearing… in particular if it considers the testimony of such a witness to be irrelevant, immaterial, unreasonably burdensome, duplicative or for any other reasons not necessary for the resolution of the dispute” (Article 5.3; emphasis added). There is a similar statement in the IBA Rules on the Taking of Evidence, and both sets of rules promote videoconferencing where appropriate (Articles 8.2 and 8.1 respectively). However, the Prague Rules go further in suggesting that “to the extent appropriate for a particular case, the arbitral tribunal and the parties should seek to resolve the dispute on a documents-only basis” (Article 8.1). This is encouraged by other rules, but generally in the context of expedited proceedings; see the ICC 2017 rules, for example, which state that “the arbitral tribunal may, after consulting the parties, decide the dispute solely on the basis of the documents submitted by the parties, with no hearing and no examination of witnesses or experts” (Appendix VI, Article 3.5).
The need for oral evidence varies, of course, from case to case. In many arbitrations it is crucial and needs to be used extensively to bridge gaps in the documentary evidence, explain documents and figures, and generally give the tribunal insight into the human and practical realities underlying a dispute. However, it is obvious that lawyers’ use of witness evidence (and especially the live evidence of witnesses of fact) is sometimes profligate, as is their use of hard copy documents. For this reason, most of the rules and soft law governing arbitration today try to nudge arbitrators and practitioners towards more efficient practices, chiefly with a view to saving parties’ time and money.
Hopefully Lucy Greenwood’s initiative will give them a further nudge in this direction, with broader aims in view. However, what is really needed now is not just incremental change, for whatever purpose. Instead, a radical re-think is in order, with everyone involved in arbitration making a serious effort to exploit the flexibility inherent in the process and bring it into the 21st century, aligning it more closely with clients’ needs, working practices and expectations. Lawyers place great emphasis on understanding a client’s business and the industry in which it operates. But how many of them learn from the way clients organise themselves and apply what they learn to their own legal business? The answer is probably far too few.