Climate change litigation is no longer on the margins and it's certainly here to stay. This is the overriding message of the 'Global trends in climate change litigation: 2022 snapshot' recently published by The Grantham Research Institute on Climate Change and the Environment.
Recognised by the Intergovernmental Panel on Climate Change this year as a growing phenomenon which has, in some cases, "influenced the outcome of and ambition of climate governance", climate change litigation is something which all major commercial players must increasingly consider.
The need for businesses to not only appear to be engaging with the climate crisis but actually taking business transitional steps to achieve stated aims is real, and coupled with the broader focus on ESG, these matters are now at the top of the corporate agenda. Consumers now expect businesses to be environmentally positive and so real climate change mitigation is essential in avoiding the risk of being the target of action (not to mention avoiding being societally 'cancelled'). The big picture aim is that businesses implementing climate change mitigation will have a measurable impact on the environment, being at the forefront of this constitutes an opportunity for businesses both in terms of making them more appealing than rivals and also in reducing the risk of facing climate change litigation. Engaging on these matters now is therefore a win-win for businesses (and the Earth alike).
Incorporating climate positive practices in day-to-day running is one key way that an organisation can therefore demonstrate its environmental and sustainability commitments. This is no different for law firms. Indeed, tracking this idea through into an organisation’s dispute resolution and litigation policies and practices is now crucial. The Chancery Lane Project (TCLP) assists with this in a practical way and Trowers & Hamlins is proud to be involved in the project.
TCLP provides model clauses, drafted by international legal and industry experts, which provide commercially viable, climate positive and ready-to-use solutions. There are four TCLP tools which relate directly to dispute resolution and litigation.
First up, is 'Emilia's Protocols'. This constitutes two protocols, one relating to litigation and one relating to arbitration, which contain modules that the parties can opt into at the beginning of these processes to ensure climate positive alignment. The various modules focus on actions such as paper use reduction in relation to documents and bundles, travel reduction by way of increasing virtual communication and environmentally friendly travel and accommodation selection for hearings. Using these protocols, the parties would agree to measure and ultimately reduce their greenhouse gas emissions throughout the litigation or arbitration processes.
Next, we have 'Toby's Clause'. Reducing the use of paper during a dispute is the aim of this clause. Where paper is necessary, this clause obligates the parties to use recycled paper, non-solvent based printer ink and non-plastic tabs and dividers. Interestingly, this clause also includes a commitment towards climate change mitigation by way of the parties purchasing carbon offsets or planting native trees to offset their greenhouse gas emissions post-dispute.
Thirdly, there's 'Mia's Clause'. This is a condensed, arbitration focused, version of Emilia's Protocols, outlining in a short and sharp form the steps that parties agree to take to reduce their greenhouse gas emissions in relation to arbitration hearings. Travel and use of paper reduction are at the heart of this clause, with the parties committing to calculate and, importantly, disclose their greenhouse gas emissions resulting from air travel in relation to the arbitration hearings.
Lastly, is the big picture orientated 'Leo & Molly's Clause'. Contracts and agreements can incorporate this clause so that the governing law chosen to resolve disputes aligns with global climate objectives. This means that the governing law incorporates the ultimate objectives of the United Nations Framework Convention on Climate Change, the Paris Agreement, and limiting the increase in global temperatures and achieving net zero emissions by 2050 or earlier.
TCLP clauses can be amended and adapted as the parties see fit, carefully selecting applicable elements is entirely reasonable. Parties can adopt these clauses at the point of entering into contracts or agreements, or at the start of a dispute or litigation process. Considering how these clauses may work in practice is crucial; the common theme of reducing use of paper and travel poses practical and logistical questions and complexities.
All actors in litigation and arbitration must share this aim while also ensuring that the standards and rigour of our legal systems are maintained. By way of example, whether or not a Court hearing can be held virtually is currently a decision for the judge based on the interests of justice. The unofficial policy of the Commercial Court of the High Court of Justice is to allow a virtual hearing if it is expected to take half a day or less, anything longer than half a day requires an in-person hearing (and not hybrid). Nevertheless, we have experience of in-person hearings being insisted upon by the Court despite parties' requests for hybrid hearings (due to the location of the parties). This juncture presents an opportunity for TCLP clauses to effect real change and to nudge all parties involved to adapt their travel behaviours in other ways.
Trowers & Hamlins can adeptly assist businesses with incorporating these clauses into real documents and implementing them moving forwards. Participation in TCLP is only one example of the ways in which we act for clients in a climate conscious manner and incorporates climate positive tools into its dispute resolution and litigation work.
The 2022 snapshot tells us that the rise of climate change litigation is something for all professionals to think about. Demonstrating active climate positivity feeds into every element of a business, including the handling of disputes and litigation. Tools, such as TCLP clauses, being utilised sensibly by legal experts is one step in the right direction. It is critical for organisations to ensure that they appreciate the growing risks that climate change litigation poses and engage with the tools and support which is available, for their own benefit and that of the wider environment.
Next in the series we look at The Chancery Lane Project contract drafting in a rural and agricultural setting.
