ADR & Business-Related Human Right Violations (Part 2/2)

By Charlotte Tran

In an effort to present a thorough overview of the topic elaborated in the previous blog post, we will shift the focus here on international arbitration on business-related human rights violations. As previously mentioned, parties to such disputes are big multinational business enterprises (MNEs) and victims are subject to be linked to severe consequences by MNEs’ actions.[1] Sadly, these disputes often take place in regions or countries where judicial system is dysfunctional and politically influenced. Therefore, the victims have very slim chances to bring their case to the courts and acquire the justice they deserve. This is one the main incentives for the creation of the Working Group on Business and Human Rights Arbitration by Claes Cronstedt, Jan Eijsbouts and Robert Thompson.[2] The Working Group believes that arbitration is a promising solution for such disputes and can serve useful purposes of achieving justice for the victims and at the same time, assisting MNEs to prevent abuse occurring within their supply chain.[3] Further details of the Work Group’s project will be explained below and it is also important to trace back the history of this field.

In 2008, the United Nations officially endorsed the ‘Protect, Respect and Remedy Framework’ for business and human rights.[4] This framework was established by the Special Representative of the UN Secretary General, Professor John Ruggie, pursuing three years of research and worldwide consultations with businesses, civil society, governments, and victims of corporate human rights abuses. Professor Ruggie dedicated his passions and his career for engaging with stakeholders, conducting researching, and advocating new ways of thinking.[5] He was inspired to bring justice and a positive change to the victim of human rights abuses caused by businesses. On the 16th of September 2021, we received an extremely sad news that Professor Ruggie passed away at the age of 76.[6] In memory of Professor Ruggie, it is crucial to highlight that his work has paved the way for a new way of thinking. seeing the world and indeed, for a strong urge to take actions by implementing the Guiding Principles.

According to the UN Guiding Principles on Business and Human Rights (“UNGPs”), states have a duty to ensure that effective judicial and non-judicial remedy mechanisms are available against business-related human rights violations.[7] The framework also highlights that, where business enterprises identify that they have caused or contributed to adverse impacts on human rights, they should provide for ̶or cooperate in ̶their remediation through legitimate processes.[8] Where adjudication is needed, this should be carried out by means of legitimate, independent third-party mechanisms.[9] Yet it has proven to encounter multiple obstacles to enforce business and human rights obligations and commitments via domestic, regional and international dispute resolution mechanisms, particularly with regards to transnational disputes.[10]

Following the guidance of the UNGPs, the Working Group on Business and Human Rights Arbitration seems to support international arbitration, as a method of dispute resolution that can play a promising role in resolving disputes for business-related human rights abuses, as it can overcome the legal obstacles faced by individuals when bringing the case before national courts.[11] In adherence with the UNGPs, business and human rights (“BRH”) arbitration provides a private judicial process based on the consensus of both parties.[12] Throughout the process, expert arbitrators chosen by the parties would be able to address the violation of BHR obligations and offer due relief.[13] BHR arbitration also strives to mitigate the inequality between the parties with regards to “access to information, funding, expertise, and skilled counsel”.[14] Quite often, the inequality also originates from the vulnerable position of the witnesses on behalf of the victims and thus, transparency on the identity of the witnesses, public defenders or counsel, is a means to protect them from retaliation, to certain extent.[15] Nevertheless, additional protection is still required in some cases where public knowledge may also put them at risk.[16]

In conclusion, business and human rights violations certainly deserve more attention and require strong cooperation in relation to efficient implementation by both governments and business to eradicate human rights abuses. The movement to emphasize human rights in the business sector is more relevant than ever and the UNGPs’ impact is growing thanks to years of dedication and research of Professor Ruggie. In the meantime, the Hague Rules and the on-going progress seen by the Working Group have contributed towards filling in the remedy gap in the UNGPs.

[1] Claes Cronstedt, Jan Eijsbouts and Robert C. Thompson, ‘ International Arbitration to resolve Human Rights Disputes Involving Business Proposal’ (CILC) https://www.cilc.nl/cms/wp-content/uploads/2018/03/INTERNATIONAL-ARBITRATION-TO-RESOLVE-HUMAN-RIGHTS-DISPUTES-INVOLVING-BUSINESS-PROPOSAL-MAY-2017.pdf accessed 19 October 2021.

[2] Drafting Team of the Hague Rules on Business and Human Rights Arbitration, ‘The Hague Rules on Business and Human Rights Arbitration’ (CILC) https://www.cilc.nl/cms/wp-content/uploads/2019/12/The-Hague-Rules-on-Business-and-Human-Rights-Arbitration_CILC-digital-version.pdf accessed 19 October 2021.

[3] Cronstedt, Eijsbouts and Thompson (n 1).

[4] ‘The Un Guiding Principles on Business and Human Rights: An Introduction (OHCHR) https://www.ohchr.org/Documents/Issues/Business/Intro_Guiding_PrinciplesBusinessHR.pdf accessed 19 October 2021.

[5] Marta Hurtado, ‘In Memory of John G. Ruggie: Tribute by OHCHR’ (Business Human Rights Organization)

https://www.business-humanrights.org/en/latest-news/in-memory-of-john-g-ruggie-tribute-by-ohchr/ accessed 19 October 2021.

[6] Ibid.

[7] Drafting Team of the Hague Rules on Business and Human Rights Arbitration, ‘Elements for Consideration in Draft Arbitral Rules, Model Clauses, And Other Aspects Of The Arbitral Process’ (CILC) https://www.cilc.nl/cms/wp-content/uploads/2019/01/Elements-Paper_INTERNATIONAL-ARBITRATION-OF-BUSINESS-AND-HUMAN-RIGHTS-DISPUTE.font12.pdf accessed 19 October 2021.

[8] Ibid.

[9] Ibid.

[10] Ibid.

[11] Ibid.

[12] Ibid.

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] Ibid.