Model clause

Green Litigation and Arbitration Protocols

Emilia's Protocols

Two similar protocols (litigation and arbitration) with modules which parties can opt into at the start of a dispute to make it lower carbon and greener.

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Why use this?

The processes and paperwork for courts/tribunals to conduct disputes is carbon intensive and environmentally unfriendly.

Disputes are not normally aligned with corporate objectives on environment or climate, yet they are part of business life.

Companies are becoming increasingly aware of this issue and are looking to see what law firms are doing when considering who to have on their panel and these companies also need to show what they are doing to offset their own impact.

How it promotes a net zero future

Adherence to all or some of the protocol(s) would reduce paper consumption and other environmentally-unfriendly practices.

Raising the protocol at the start of a dispute helps focus parties’ minds on environmentally friendly practices.

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The clause

Green Arbitration Protocol

Module 1 Written Correspondence

Written Correspondence Between the Parties and To and From the Tribunal

  1. Parties agree to correspond by way of electronic communication only, and not to print copies of electronic communications unnecessarily. Parties, the Tribunal, the relevant arbitral institution and the Tribunal Secretary should seek to correspond by way of electronic communication only, and not print copies of electronic communications unnecessarily.
  2. Parties agree not to request hard copy documents from each other unnecessarily.
  3. The relevant participants should share or agree on the following:

(a) the relevant email addresses for all email communications to be sent to if not using a shared platform for all communications;

(b) the maximum size of file accepted (e.g.15MB);

(c) the platform agreed by the parties for the sharing of larger documents, if documents exceed maximum size;

(d) requirement that any document served by email must be in searchable pdf format, where possible;

(e) whether any specific security should be applied to documents, for example, through the use of passwords;

(f) any required labelling convention of documents; and

(g) confirmation that any correspondence sent by way of email is deemed received unless proven to the contrary.

4. Any written correspondence which cannot be delivered electronically will be printed double-sided and will be delivered in as environmentally-friendly a manner as is reasonable.

Written Correspondence with Third Parties

  1. The parties agree, as far as is reasonably possible, to seek to correspond by way of electronic communication only with any third parties.
  2. Where it is not possible to correspond by way of electronic communication with a third party, the parties agree to print all correspondence double-sided.

Written Correspondence Within Legal Teams

  1. Legal teams should seek to correspond internally by way of electronic communication only and should not print copies of electronic communications unnecessarily.
  2. Any written correspondence which cannot be delivered electronically will be printed double-sided and will be delivered in as environmentally-friendly a manner as is reasonable.

Module 2 Bundles

Internal preparation & analysis bundles

  1. Parties are to avoid printing documents where possible.
  2. When compiling document bundles for internal preparation and analysis purposes, the parties are to use electronic bundles where possible.
  3. Where hard copies are required or unavoidable, parties are to seek to print double sided and consider whether it is practicable to print in A5 format. If these bundles need updating, parties will amend existing bundles instead of recreating them.
  4. Where possible, parties shall use recycled paper. 

Hearing bundles

  1. Parties are to use best endeavours to produce electronic bundles.
  2. Parties will propose to the Tribunal, when negotiating an initial Procedural Order and/or the Terms of Reference or the Terms of Appointment, that:

(a) electronic copies be used for interim and/or final hearings; and/or

(b) hard copy bundles not be sent over long international distances by courier if this can be avoided.

  1. Hard copy printing generally should be kept to a minimum.
  2. Parties will seek to use soft copy hearing bundles for interim or procedural hearings, where practicable.
  3. Where hard copies are unavoidable, parties are to seek to print double sided and consider whether it is practicable to print in A5 format.
  4. Once no longer needed, hard copy bundles are to be recycled in a secure and confidential manner.
  5. Where it is necessary to deliver hard copy bundles, where possible and as agreed by the parties, these should be sent by non-motorised transport (e.g. cycle courier) or sent in electronic format to a local print agency who can deliver to the intended recipient.

Module 3 Written Pleadings

Written Pleadings

  1. Parties will file their respective written pleadings by way of electronic communication or through the use of an agreed and secure platform only, with the size of the electronic file to be minimised insofar as is possible.
  2. Parties will not usually print written pleadings, but where it is necessary to do so, agree to print only a minimal number (including, where feasible, relevant excerpts only) and, where doing so, to print double-sided and consider whether it is practicable to print in A5 format.

Fact Exhibits & Legal Authorities Accompanying the Written Pleadings

  1. Parties will submit their fact exhibits and legal authorities by way of electronic communication or through the use of an agreed and secure platform only.
  2. Parties will not usually print fact exhibits and legal authorities, but where it is necessary to do so, undertake to print only a minimal number (including, where feasible, relevant excerpts only) and, where doing so, to print double-sided and consider whether it is practicable to print in A5 format.
  3. Parties will cooperate to ensure that each exhibit has a unique identifier that is used for all subsequent references to that document and without a further copy of the exhibit being attached.

Module 4 Expert Reports and Factual Witness Statements

Preparation of documents for witnesses and experts

1. Documents should be provided to witnesses and experts in electronic form only, if possible.

2. Where documents are provided in an electronic bundle, they should be made available in a format which can be electronically highlighted and annotated.

Meetings with witnesses and experts

3. Parties agree to consider conducting witness proofing remotely, where it is not possible to meet in person in an environmentally conscious manner.

4. Meetings with experts, and between experts, should be held remotely where practicable. Where not practicable, meetings should be arranged in an environmentally conscious manner.

5. Expert joint meetings should be held remotely, where it is not possible to meet in person in an environmentally conscious manner.

6. Parties agree to provide an easily accessible electronic bundle of documents for any experts or witnesses. Where the bundle for a particular meeting is made available in a single document, the party preparing the bundle should endeavour to bookmark/tab the bundle to allow the user to navigate it easily and minimise the temptation to print documents.

Travel and accommodation

7. In exceptional cases where travelling is necessary, parties should endeavour to travel in as environmentally-friendly a manner as possible (for example, using hybrid or electric vehicles where possible) and use their best endeavours to offset any carbon emissions associated with air travel.

8. Where experts or witnesses do travel to meet with solicitors or counsel (or vice versa) the parties should endeavour to obtain accommodation near their meeting place to eliminate the need to travel by motorised transport.

Module 5 Document Production & Disclosure

Document Production and Disclosure

1. Parties agree that documents should be produced and disclosed electronically as far as possible.

2. Parties agree that electronic copies shall be provided in the form which allows the party receiving the documents the same ability to access, search, review and display the documents (including metadata) as the party providing them.

3. As regards hard copy documents, parties agree that these should be scanned and where possible, made word searchable, in order to facilitate production in electronic form.

Reviewing Document Production and Disclosure

4. Parties agree to consider as far as possible ways to access data sources remotely rather than travelling and/or sending these to legal teams for review, including:

(a) Data to be sent via file sharing sites; and/or

(b) Remote, rather than localised, connections to servers.

Module 6 Hearings

Procedural & Evidentiary Hearings

  1. The parties agree to consider whether the dispute can be resolved on a documents only basis, and without the need for a hearing.
  2. The parties agree to the default position that hearings not requiring witness or expert evidence should be conducted using videoconferencing technology, telephone communication or other form of communications technology unless this is inappropriate in the circumstances of the case.
  3. Parties will also consider the feasibility of this default position in hearings where witness or expert evidence is required.

Location of Hearings

  1. Parties agree,
  2. where appropriate, to hold procedural hearings and hearings of one day or less by video-conference.
  3. Parties agree, where appropriate, to hold a hybrid hearing whereby legal counsel for the parties and the Tribunal (including the Tribunal Secretary, where appropriate) are all in the same physical location and where some or all experts and witnesses are permitted to provide oral testimony by way of video-conference.

Hearing Bundles

  1. Parties agree, where reasonable, to use electronic hearing bundles only. Where possible, the bundles should be prepared in a format which can be electronically highlighted and annotated.
  2. Parties agree, where reasonable, to provide electronic copies of opening and closing oral presentations only.
  3. Parties agree to dispose of hard copies of any hearing bundle (including bundles for witnesses and/or experts) after the hearing in an environmentally-friendly, confidential and secure manner.

Travel to Hearings

  1. Parties will minimise unnecessary travel both within their own team and within their counsel team and, where it is necessary to travel, to do so using the minimum number of trips.
  2. Parties and counsel will travel to hearings in as environmentally-friendly a manner as possible (for example, using hybrid or electric cars where possible).
  3. Parties will use their best endeavours to offset any carbon emissions associated with air travel to and from the hearing.

Module 7 Settlement

  1. Parties agree that settlement discussions are to be had by way of video or conference call, where possible.
  2. Parties agree that, where possible, the signing of the settlement agreement and consequent award shall be done in counterparts to avoid travelling to meet in person, in particular where such travel would require international travel.
  3. Parties agree to consider, where possible, as part of the settlement, how they can take steps to offset the climate impact of the dispute.
  4. Parties agree to consider, where possible, charitable initiatives, as part of the settlement, in relation to the subject matter of the dispute or as part of any payment under the settlement.

Module 8 End of Dispute

  1. Parties agree to assess at the end of the dispute whether any hard copy documents need to be retained to avoid the need to reprint in the future.
  2. Parties agree to consider at the end of the dispute, how they can take steps to offset the climate impact of the dispute.

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Green Litigation Protocol

Module 1 Written Correspondence

Written Correspondence Between the Parties

1. Parties agree to correspond by way of electronic communication only, and not to print copies of electronic communications unnecessarily.

2. Parties agree not to request hard copy documents from each other unnecessarily.

3. At the start of the dispute, the parties should share or agree on the following:

(a) the relevant email addresses for all email communications to be sent to if not using a shared platform for all communications;

(b) the maximum size of file accepted (e.g.15MB);

(c) the platform agreed by the parties for the sharing of larger documents, if documents exceed maximum size;

(d) requirement that any document served by email must be in searchable pdf format where possible;

(e) whether any specific security should be applied to documents, for example, through use of passwords; and

(f) any required labelling convention of documents. 

Written Correspondence with Third Parties

4. The parties agree, as far as is reasonably possible, to seek to correspond by way of electronic communication only with any third parties.

5. Where it is not possible to correspond by way of electronic communication with a third party, the parties agree to use best endeavours to print all correspondence double-sided.

Written Correspondence Within Legal Teams

  1. Legal teams seek to correspond internally by way of electronic communication only and should not print copies of electronic communications unnecessarily.
  2. Where it is not possible to correspond by way of electronic communication, the parties agree to use best endeavours to print all correspondence double-sided.

Module 2 Bundles

Internal preparation & analysis bundles

  1. Parties are to avoid printing documents where possible.
  2. When compiling document bundles for internal preparation and analysis purposes, the parties are to use electronic bundles where possible.
  3. Where hard copies are required or unavoidable, parties should print double sided and consider whether it is practicable to print in A5 format. If these bundles need updating, parties will amend existing bundles instead of recreating them.
  4. Where possible, parties shall use recycled paper for internal bundles. 

Hearing bundles

  1. Parties will use soft copy hearing bundles for interim or procedural hearings, where practicable, and limit the number of hard copies to that required by a relevant court or tribunal order, procedural rule, practice direction or court guide.
  2. Where hard copies are required or are unavoidable, parties should print in accordance with a relevant court or tribunal order, procedural rule, practice direction or court guide, where practicable printing double sided and/or in A5 format.
  3. Once no longer needed, hard copy bundles should be recycled in a secure and confidential manner.
  4. Where delivery of hard copy bundles is required or is unavoidable, where possible and as agreed by the parties, these should be sent by non-motorised transport (e.g. cycle courier) or sent in electronic format to a local print agency who can deliver to the intended recipient.

Module 3 Witness Statements & Expert Reports

Preparation of documents for witnesses and experts

1. Parties agree that documents should be provided to witnesses and experts in electronic form only if possible.

2. Where documents are provided in an electronic bundle, they should, where possible, be made available in a format which can be electronically highlighted and annotated.

Meetings with witnesses and experts

3. Parties agree to consider conducting witness proofing remotely, where it is not possible to meet in person, in an environmentally conscious manner.

4. Meetings with experts, and between experts, should be held remotely where practicable. Where not practicable, meetings should be arranged in an environmentally conscious manner.

5. Expert joint meetings should be held remotely, where it is not possible to meet in person, in an environmentally conscious manner.

6. Parties agree to provide an easily accessible electronic bundle of documents for any experts or witnesses. Where the bundle for a particular meeting is made available in a single document, the party preparing the bundle should endeavour to bookmark/tab the bundle to allow the user to navigate it easily and minimise the temptation to print documents.Travel and accommodation

7. In exceptional cases where travelling is necessary, parties will endeavour to travel in as environmentally-friendly a manner as possible (for example, using hybrid or electric vehicles where possible) and use their best endeavours to offset any carbon emissions associated with air travel.

8. Where experts or witnesses do travel to meet with legal representatives (or vice versa) the parties will endeavour to obtain accommodation near their meeting place to eliminate the need to travel by motorised transport.

Module 4 Document Production

Document Production and Disclosure

  1. Parties agree that documents should be produced and disclosed/provided electronically as far as possible, unless a relevant court or tribunal order, procedural rule, practice direction or court guide requires hard copy documents to be disclosed.
  2. Parties agree that, as far as possible, electronic copies shall be provided in the form which allows the party receiving the documents the same ability to access, search, review and display the documents (including metadata) as the party providing them.
  3. As regards hard copy documents, parties agree that they should be scanned and, where possible, made word searchable, in order to facilitate production in electronic form.

Reviewing Document Production and Disclosure

4. Parties agree to consider as far as possible ways to access data sources remotely rather than travelling and/or sending these to legal teams for review, including:

(a) data to be sent via file-sharing sites; and/or

(b) remote, rather than localised, connections to servers.

Module 5 Hearings

Location of Hearings

  1. Parties agree, where appropriate, to seek permission for procedural hearings and hearings of one day or less to be held by video-conference.
  2. Parties agree, where appropriate, to seek permission for hearings to be held on a hybrid basis whereby the legal teams for the parties attend Court but some or all experts and witnesses are permitted to provide oral testimony by way of video-conference.
  3. Parties agree to the default position that hearings not requiring witness or expert evidence should be conducted using videoconferencing technology, telephone communication or other form of communication technology unless this is inappropriate in the circumstances of the case.

Hearing Bundles

  1. Parties agree, where permitted by a relevant court or tribunal order, procedural rule or practice direction, to use electronic hearing bundles only. Where possible, the bundles should be prepared in a format which can be electronically highlighted and annotated.
  2. Parties agree, where permitted by a relevant court or tribunal order, procedural rule or practice direction, to provide electronic copies of opening and closing submissions only.
  3. The Parties agree to dispose of hard copies of any hearing bundles (including bundles for witnesses and experts) in an environmentally friendly, confidential and secure manner.

Travel to Hearings

  1. Parties will minimise unnecessary travel both within their own team and within their counsel team and, where it is necessary to travel, to do so using the minimum number of trips.
  2. Parties and counsel will travel to hearings in as environmentally-friendly a manner as possible (for example, using electric or hybrid vehicles where possible).
  3. Parties will use their reasonable endeavours to offset any carbon emissions associated with air travel to and from the hearing.

Module 6 Mediation/Settlement

  1. Parties agree that settlement discussions are to be had by way of video or conference call, where possible.
  2. Parties agree that, where possible, the signing of the settlement agreement shall be in counterparts to avoid travelling to meet in person, in particular where such travel would require international travel.
  3. Parties agree to consider, where possible and as part of the settlement, how they can take steps to offset the climate impact of the dispute.
  4. Parties agree to consider, where possible, charitable initiatives, as part of the settlement in relation to the subject matter of the litigation or as part of any payment under the settlement.

Module 7 End of the Dispute

  1. Parties agree to assess at the end of the dispute whether any hard copy documents might need to be retained to avoid the need to print them again in the future.
  2. Parties agree, as far as possible, to dispose of all confidential documents related to the matter which are no longer needed in an environmentally friendly and secure manner.
  3. Parties agree to consider at the end of the dispute how they can take steps to offset the climate impact of the dispute.

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