Sustainable Arbitration Along the Belt and Road Initiative: The Green Model Clause

While there may be developments in the substantive obligations in green arbitration, it is difficult to say the same for the procedural aspects. Many have voiced concerns over the huge environmental impact in cross-border arbitration as a result of flights necessary for hearings and countless bundles of documents (just to name two examples). A select number of arbitral institutions have implemented climate-friendly practices in their rules and practice (whether pre- or during the COVID-19pandemic), but such initiatives are far from sufficient. Although the new norm of virtual hearingshas become common, some are concerned about their adoption, alleging a violation of the right to aphysical hearing and consequently access to justice. Yet a relevant report released by the InternationalCouncil for Commercial Arbitration ('ICCA') has definitively concluded otherwise. In this article,the Belt and Road Initiative ('BRI') provides the backdrop as one of the biggest infrastructure projectsin the world that utilizes international arbitration. There are various initiatives within the BRI thatgather major stakeholders, with the most relevant project here being the Beijing Joint Declaration byArbitration Institutions for the BRI (the'Beijing Declaration'), which was issued by major arbitralinstitutions around the world and pushes for innovative changes in arbitration. Building on greenpractices in the arbitration community and the confirmation by ICCA that virtual hearings in and ofthemselves do not encroach on access to justice, the author suggests that arbitral institutions involved inthe Beijing Declaration or along the BRI could pioneer changes in green arbitration by launching aGreen Model Clause, which could operate as a clause for parties to adopt alongside carbon emissionsscorecards, with the scorecards setting out a framework on the relevant factors for the tribunal to consider in the process of cost optimization