SOAS survey highlights divide in the drive for greener African arbitrations

That is apparent from the results of the ‘Arbitration in Africa’ survey (22 pages / 12.7MB PDF), a study co-sponsored by international law firm Pinsent Masons and Nigerian dispute boutique Broderick Bozimo & Co, which examined the impacts on arbitration of the Covid-19 pandemic among other issues.

Adaptation was a key word used by the chair of the African Group of Negotiators on Climate Change, Ephraim Mwepya Shitima, in the build up to COP 27 in Egypt in November.

Shitima stressed the need for African adaptation to green issues and said that Africans should all care about climate change because it is impacting Africa’s economy and the trajectory of its development.

African youth leader Lucky Abang put the issue more bluntly – “we want action now”.

The comments of leaders such as Shitima and Abang have special resonance given that

Africa contributes just 4% of global greenhouse gas emissions each year yet feels the effects of climate change particularly keenly.

Shitima used the example of the recent flooding in Kwa Zulu Natal in South Africa as a poignant example of the real risks many ordinary African people face as a result of climate change. The 2021 ND-GAIN index currently ranks South Africa 92 out of 181 countries, recognising the country as vulnerable to climate change impacts.

Most respondents to the survey (54%) were passionate about the positive impact which greener arbitration practices can bring to support the wider environmental goals of the continent.

Importantly, changes within the industry to support such practices were being seen to be implemented now, and the view was that more of those practices would continue into the future

However, 37% of respondents to the survey said that they did not believe that climate change was relevant to arbitration practices in Africa, and 9% said they were not interested. This apathetic view was influenced by the belief that Africa is not a major contributor to climate change, with respondents stressing that carbon inefficient arbitration practices on the continent should not be overplayed. Greater focus should, they said, be placed elsewhere.

It would be unsurprising if a number of those same respondents were among those who also believe, as other results in the survey showed, that greener arbitration measures bring an increase in cost to those who practice arbitration on the continent.

It is true that the technology required to practice greener arbitrations comes with a cost. Principally this is driven by the use of fit for purpose video link technology and the faster, more reliable, internet connections which are required to support it. The cost of upgrading to capable infrastructure is proportionately higher to smaller arbitration practices and those in less developed areas where supply is restricted.

However, it is our view that the benefit of greener arbitration practices outweighs the cost and this is a view shared by a majority of respondents. They cited the fact that “going green” inevitably meant that efficiencies were driven through, in particular, reduced domestic and cross border travel and fewer sheets of paper being physically printed. The latter has the added benefit of less human resource needed to compile and organise those papers.

Most respondents also saw the embedding of hybrid or entirely virtual hearings, whilst being primarily necessitated to a large extent by the Covid-19 pandemic rather than a climate agenda, as bringing with it inevitable aspects of “green” practice.

As we recently explored, whatever the driver for technological change, the majority of respondents saw the adoption and continuation of hybrid style hearings as a positive development for arbitration in Africa and one which is likely to minimise the impact of international arbitration on the environment.

Moreover, even where carbon intensive practices were still adopted in the industry, a number of respondents pointed to the ability of those companies and entities involved in arbitration in Africa to purchase carbon credits to offset their emissions or even to power their practices through the use of cleaner energy.

Some African arbitration practices will not have the luxury of choice when it comes to energy supply, but that should change over time as governments across the continent continue investment in hydroelectric, solar, wind, and even “clean” hydrogen projects.

The survey also highlighted other drivers for change.

Respondents identified the role of clients as fundamental. Many clients, they said, now demand that law firms demonstrate their green credentials. Legal practices must therefore be increasingly prepared to be challenged on whether their business practices are sustainable.

The recommendations of the Campaign for Greener Arbitration and the Green Pledge and Protocols are also credited as having an important role to play in driving sustainable African arbitration practices in the future. Many African institutions, such as the Arbitral Foundation of South Africa and the LACIAC in Nigeria, are signatories to that Pledge, as are many international and domestic law firms that maintain a practice on the continent.

In the words of Shitima, Africa must adapt and change to low carbon and sustainable development. Most survey respondents agree that arbitration practices in Africa should change, and are changing, to meet that need.