Legal design for indigenous communities: A case within the carbon credit market

Abstract

Traditional contract architectures and structures do not address indigenous communities’ needs and can hinder them from accessing justice. As indigenous communities have a growing stake in current business deals and structures, they have been misrepresented in negotiation and contracting processes. Access to justice does not only mean the right to file a lawsuit or go to court, but for a person to effectively understand and exercise their own rights. Therefore, traditional standard contracts are not proper business instruments to deal with the growing business opportunities presented to indigenous communities today. Those standards have historically been created to cover corporate needs, generally comprising a homogeneous group of people. Therefore, such contracting instruments keep such communities from accessing justice. This article explores the resources that legal design techniques present to create more accessible documents as a tool for social justice. By using a different and innovative contract architecture, design features, and user experience (UX) principles, documents may increase empathy for their users, diminish sales cycles, and avoid conflicts during negotiations. Legal design techniques applied to a carbon credit generation agreement during a negotiation between a Colombian company and a Brazilian indigenous community led to the closing of a fair deal, respecting the community's interests. This article explores the resources used in the contract and its results. The analysis also explores a prior attempt to use a standard document version, which created resistance from the community's leaders to negotiate the deal due to its structure and language. The language and structure used in the traditional contract model led to misinterpretation, mistrust, and communication problems between the parties, hindering them from closing a deal. Such a case demonstrates that legal design can benefit any group in which legalese can represent a barrier to the full understanding of a document. By using UX and design principles to better organize content and make it clearer to a document's user such resources help them fully exercise their rights. In addition, this case advocates for the use of legal design for documents that aim at other minority groups as their end users.