THE BUSINESS OF HUMAN RIGHTS: IS THERE A VIABLE PLATFORM FOR ARBITRATION?
How does one resolve disputes when business and human rights violations are intertwined? It has long been a conundrum facing specialised, transnational judicial bodies, created in the backdrop of wartime, to address international law and justice, such as the International Court of Justice (ICJ), the European Court of Justice (ECJ) and the International Criminal Courts (ICC).
A modern query has been whether there is a viable avenue to arbitrate these business and human rights (BHR) disputes, to better address contractual human rights commitments in parallel with efficiency, transparency, access to legal recourse, time and cost.
Key considerations include: (i) how best to define human rights within the ambit of a workable (from a Working Group standpoint) and working (from a functionality standpoint) rules set, e.g., employment, environmental and displacement of indigenous people; (ii) who should draft such rules and sit as arbitrator; (iii) what parameters to mitigate the adverse effects of business operations on human rights within the ambit of guidelines offered by the 2011 UN Guiding Principles on Business and Human Rights (UNGPs); and (iv) where to enforce the resulting arbitral awards.
By way of background, the UNGPs are a set of guidelines for states and companies to prevent, address and remedy human rights abuses committed in the course of their business operations. The UNGPs were proposed by the UN special representative on business & human rights, professor John Ruggie, and endorsed by the UN Human Rights Council in June 2011. What is unique about the UNGPs is that they apply both to all states and all business enterprises, transnational or otherwise, and irrespective of their size, sector, location, ownership and structure.
Apr-Jun 2020 issue
New York International Arbitration Center
Arnold & Porter Kaye Scholer LLP