Editor's Note: Catherine Dunmore is an experienced international lawyer who practised international arbitration for multinational law firms in London and Paris. She recently received her LL.M. from the University of Toronto and her main fields of interest include international criminal law and human rights. Since October 2017, she is part of the team of the Doing Business Right project at the Asser Institute.

Background

At the United Nations Forum on Business and Human Rights from 27-29 November 2017 in Geneva, discussions focused on the central theme of Realizing Access to Effective Remedy. With an increasing focus on this third pillar of the United Nations Guiding Principles on Business and Human Rights, a working group of international law, human rights and conflict management specialists (Claes Cronstedt, Jan Eijsbouts, Adrienne Margolis, Steven Ratner, Martijn Scheltema and Robert C. Thompson) has spent several years exploring the use of arbitration to resolve business and human rights disputes. This culminated in the publication on 13 February 2017 of a proposal for International Business and Human Rights Arbitration. On 17 August 2017, a follow-up Questions and Answers document was published by the working group to address the principal questions raised about the proposal during the three-year consultation with stakeholders. Now, a drafting team is being assembled, chaired by Bruno Simma, to prepare a set of rules designed specifically for international business and human rights arbitration (the Hague International Business and Human Rights Arbitration Rules) in consultation with a wide range of business and human rights stakeholders. Once drafted, the rules will be offered to the Permanent Court of Arbitration and other international arbitration institutions and could be used in arbitration proceedings managed by parties on an ad hoc basis.

Introduction

Part 1 of this three-part blog series will give an overview introduction to the proposal for international business and human rights arbitration. It will discuss particularly (1) considerations for the drafters of new arbitration rules for business and human rights disputes. Part 2 will focus on the potential advantages of using international arbitration to resolve such disputes, as well as the substantial challenges the proposal will face in practice. Part 3 will then provide a case study of the Accord on Fire and Building Safety in Bangladesh’s binding arbitration process.

The proposal for International Business and Human Rights Arbitration

As the working group explains, business and human rights disputes, generally between multinational business enterprises and the victims of human rights abuse, “often occur in regions where official national courts are dysfunctional, corrupt, politically influenced or simply unqualified”. Accordingly, and as discussed further in Part 2, the concept of using the international mechanism of arbitration has attracted great attention as a potentially promising means by which to give victims an effective access to remedy. Indeed, even where capable national court systems are available, the potential for a speedier dispute resolution procedure and globally enforceable awards could render arbitration a preferred means for resolving business and human rights violations

Drafting business and human rights arbitration rules

The proposal does not call for the establishment of a new arbitration institution, but rather acknowledges that human rights disputes are fundamentally different from investor-state or commercial arbitration and that accordingly existing international arbitration rules are poorly suited to the special requirements of human rights cases. As outlined further below, current arbitrators may lack the necessary expertise to handle business and human rights violations. Moreover, and as developed further in Part 2, an inequality of arms between disputing parties is a much greater possibility between corporations and individual victims, versus two private enterprises or an investor and state. Meanwhile, confidentiality is a key factor behind the success of international commercial arbitration, but when adjudicating on disputes involving human rights violations of public concern the standard arbitration provisions dictating party privacy and transparency must be rethought. As a result, the process has begun to draft a new set of rules designed specifically for international business and human rights arbitration. The proposal is that these arbitration rules could be applied in a number of contexts:

• The parties could select the rules to use in an arbitration conducted entirely by themselves, without assistance from an arbitration institution.

• The parties could select the rules to use in an arbitration administered with the assistance of an arbitration institution.

• The parties could select an arbitration institution which has adopted the new business and human rights rules as the rules to govern proceedings conducted under its own auspices.

Identified areas which necessitate the drafting team’s focus include adaptations accounting for (a) the likely parties to business and human rights arbitrations, and (b) the constitution of business and human rights expert arbitration panels.

1. Parties to business and human rights arbitrations

In order to be fit for purpose, arbitration rules for business and human rights must suit the needs of potential parties to disputes. According to the proposal, arbitration could be adapted for use by victims of human rights violations who wish to bring claims against businesses. Consideration will need to be given by the drafters as to how to accommodate claims often by multiple victims, the mechanism to permit joinder of such claims and protections will need to be afforded to vulnerable victims. The proposal also suggests that arbitration could be used to resolve human rights related disputes between commercial parties, for instance where one party neglects contractually-imposed human rights obligations.

2. Business and human rights expert arbitration panels

Any new arbitration rules will need to provide for the appointment of expert arbitration panels to hear and decide business and human rights disputes. All parties to a dispute will need access to a wide variety of arbitrators with specific practical or academic expertise in business and human rights. However, human rights non-governmental organisations have told the working group that, in their view, “commercial arbitrators have neither the expertise nor the sensitivity to human rights matters to enable victims to feel comfortable coming before an arbitral tribunal”.

Accordingly, the working group recommends that arbitration institutions choosing to adopt the new rules create special rosters of human rights arbitrators, in a similar vein to the Permanent Court of Arbitration’s Panels of Arbitrators and Experts for Environmental Disputes. This may mean that existing arbitrators who wish to serve on business and human rights cases will be required to broaden their fields of knowledge and skill sets, whilst lawyers and scholars now working on business and human rights issues may require specialist training in acting as an arbitrator. Additionally, the proposal refers to the possibility of parties appointing qualified individuals to a business and human rights panel, even if they are not listed on an arbitration institution’s formal roster.

Conclusions

At least in theory, international arbitration has the potential to give victims of business and human rights violations access to effective remedy. Yet, the proposal clearly recognises the deficiencies in adopting existing procedural arbitration rules for the purposes of resolving business and human rights disputes and, accordingly, we now see tailored business and human rights arbitration rules being developed. However, care must be taken by the drafting team to ensure that these rules are fit for purpose. The drafters must incorporate not only the positive aspects of international arbitration but also tackle the challenges in practice of applying this alternate means of dispute resolution. These considerations will be discussed further in Part 2 of this blog series.

Editor’s note: Shamistha Selvaratnam is a LLM Candidate of the Advanced Masters of European and International Human Rights Law at Leiden University in the Netherlands. Prior to commencing the LLM, she worked as a business and human rights solicitor in Australia where she specialised in promoting business respect for human rights through engagement with policy, law and practice.

From 15 to 19 October 2018, the fourth session of the open-ended intergovernmental working group on transnational corporations and other business enterprises with respect to human rights took place in Geneva. 92 UN States participated in the session along with a range of stakeholders, including intergovernmental organisations, business organisations, special procedures of the Human Rights Council and national human rights institutions. The focus of the session was on the zero draft of the proposed binding business and human rights treaty (from herein referred to as the ‘treaty’).

This blog sets out the key views and suggestions made by those in attendance with respect to the treaty during the session.[1] Issues and areas of concern raised at the session generally aligned with the critiques raised by commentators on the first draft of the treaty (which are set out in a previous blog).

Key Comments on the Treaty

The UN Deputy Commissioner, Kate Gilmore, opened the session by welcoming the treaty and noting that the draft would form the basis of substantial negotiations. She stated that the ‘treaty should focus on the needs of people affected by business-related human rights abuses and should take into account the differential impacts such abuses have on different groups of rights-holders.’

Both states and business organisations raised the importance of the treaty aligning with the UN Guiding Principles on Business and Human Rights (UNGPs). While the influence of the UNGPs on the treaty was recognised, some states argued that the treaty undermines the UNGPS because ‘provisions of the draft diverged from the accepted approach of the UNGPs.’ For example, with respect to article 9 which imposes obligations on companies to undertake due diligence, it was noted that the article ‘departs from the UNGPs’ as it focuses on ‘results rather than conduct’. Some states further noted that the treaty misses or alters some of the steps in the due diligence process set out in the UNGPs and adds new elements. Accordingly, there were several calls for the treaty to more closely align with the ‘UNGPs and, in particular, for article 9 to align with the ‘concepts and terminology’ of the UNGPs.

With respect to the imposition of human rights obligations on businesses, many states appreciated that the treaty does not impose obligations directly on businesses, but rather recognises that the ‘primary responsibility to promote, respect, protect and fulfill human rights and fundamental freedoms lies with States’. Interestingly, one state and several NGOs considered that it would be ‘unproblematic’ to directly impose obligations on businesses under international law.

The scope of businesses covered by the treaty was subject to scrutiny by many in attendance at the session. The scope was criticised for being ‘too narrow’ in its focus on business activities of a transnational character. It was proposed that all businesses should be covered by the treaty as this would be consistent with the UNGPs and because ‘the structure or nature of a company is irrelevant to victims’ and ‘they should be entitled to access to remedy regardless of the company committing the abuse’. It was also noted that ‘many multinational companies own or have relationships with strictly domestic companies, and that, in practice, it is difficult to differentiate between transnational and national companies’. The issue noted by Professor John Ruggie with the restriction to “for-profit” economic activity arguably excluding state-owned enterprises was also raised by some states.

With respect to the provision on legal liability, there were divergent views raised during the session. Some states and particularly NGOs welcomed the inclusion of civil, criminal and administrative liability in the treaty. Other states raised concerns with the impossibility of criminal liability on businesses in circumstances where such liability was not possible in their jurisdictions. There were several calls for greater clarity of the legal liability provision. For example, as noted in a previous blog, the use of the words and phrases ‘control’, ‘sufficiently close’, ‘strong and direct connection’ and ‘foreseen’ are not defined in the treaty and therefore the meaning of these terms is unclear. Also, there were calls for a clear distinction to be made on aspects of corporate law, such as the notion of separate legal personality, and when the corporate veil can be pierced.

Differing views were raised in relation to the treaty’s interaction with future trade and investment agreements. The report notes that one delegation ‘stressed the importance of affirming the primacy of human rights over such agreements’. The current draft of the treaty requires states to agree that any future trade and investment agreements not contain provisions that conflict with the implementation of the treaty and be interpreted in a manner that is ‘least restrictive on their ability to respect and ensure their obligations under the treaty’ (see sub-articles 13(6) and (7) of the treaty). Some NGOs requested that the primacy of human rights over these agreements be explicitly stated in the statement of purpose of the treaty. However, some states expressed concern that ‘such an affirmation would prioritize one branch of international law over another and could restrict States’ negotiating positions.’

While much of the discussion during the session focused on the specific provisions of the treaty, at a more general level, those in attendance called for ‘more clarity and precision in the language’ of the treaty. Particular attention was given to the lack of clarity of the articles covering scope, definitions, jurisdiction, applicable law, rights of victims, legal liability and international cooperation.

Next Steps

So where to from here? States and other stakeholders have been invited to submit their comments and proposals on the treaty by the end of February 2019. The Chair-Rapporteur will prepare a revised draft of the treaty on the basis of the discussions during the session by the end of December 2018 and present the text by the end of June 2019. Negotiations on the next draft of the treaty will take place during the fifth session of the working group in October 2019 (the dates of the fifth session have not been announced as at the date of this blog). The Asser Institute will continue to report on developments of the treaty as information becomes available.

[1] This blog has been prepared based on the draft report of the fourth session (accessible here).