Wednesday, July 03, 2019

The Draft "Hague Rules on Business and Human Rights Arbitration" Now Open for Public Consultation and Comment

For years, people who worried about these sorts of things have worried that the United Nations Guiding Principles for Business and Human Rights was heavy on principle and very light on implementable mechanisms.  That was, of course, a deliberate choice in the development of the UNGP.  They might be understood as primarily privileging principles in order to provide a necessary foundation on which the international community (or effectively constituted fragments thereof), might develop structures and approaches to implementation that would be contextually appropriate. 

Still, the value of unification, especially in the development of standards and processes of remedy, was strong.  I counted myself among those who, years ago, pushed for such efforts around the then nascent Working Group. I argued then:
 "But the WG missed more than that. The WG failed to grasp the opportunity to become the source of the highest and most credible and consistent interpretation of the UNGPs applied in context. That failure to take on a quasi-judicial role, not unlike that of the European Court of Justice in interpreting the application of European Law, in form and effect, though not binding in fact, has significantly diminished the importance of the WG’s work and might well imperil the dynamic element of the UNGPs. The UN Development Program (UNDP) remains a framework in search of a jurisprudence. It’s most significant value lies in its application to concrete disputes among the critical stakeholders to the UNGP – states, business, and individuals on whose behalf civil society plays a decisive role. The principles of the UNDP can only be reified – made concrete – through the dynamic evolution and deepening of the “law” of the UNGPs’ consistent application through a bottom up, case-by-case basis. And this, from the perspective of both static and dynamic evolution of the UNGPs, is fundamental – both for the WG and for those civil society elements that can play a crucial role in bringing such actions and thus adding muscle to the third pillar. To this end an interpretive facility is imperative. There is no evolution of the UNDP without a substantial body of application in which the UNGPs are manifested in the actions of its three stakeholders. . . The binding effect of the determinations of any interpretive facility is less important than the project of producing these interpretations consistently and in the context of disputes actively contested among states, enterprises, and civil society actors before the UNGPs neutral interpreters." (Larry Catá Backer, "From Guiding Principles to Interpretive Organizations: Developing a Framework for Applying the UNGPs to Disputes that Institutionalizes the Advocacy Role of Civil Society," in Business and Human Rights: Beyond the End of the Beginning 97-110 (César Rodríguez Garavito, ed., Cambridge University Press, 2017) . 

Eventually, a group of quite thoughtful and capable individuals who represent the core stakeholder groups in the processes of reifying a rule system for the human rights obligations of economic enterprises,  began a process of considering the possibility of developing at least one form of unifying mechanism for the resolution of claims of human rights wrongs by economic enterprises in ways that would, it would be hoped, contribute to the construction of global consensus (common law style to be sure) on principles and their application (through the mechanisms of arbitration) in this emerging field. A drafting team put themselves together to this end.  Guided by a unifying vision of the value of an arbitral remedial mechanism, they eventually constituted themselves the  Drafting Team of the Hague Rules on Business and Human Rights Arbitration and included among them Bruno Simma, Chair, Diane Desierto, Martin Doe Rodriguez, Jan Eijsbouts, Ursula Kriebaum, Pablo Lumerman, Abiola Makinwa, Richard Meeran, Sergio Puig, Steven Ratner, Giorgia Sangiuolo, Martijn Scheltema, Anne van Aaken, and Katerina Yiannibas.  

The Drafting Team started with a process of drafting and wide consultation among those interested, including many who frequent the UN Forum for Business and Human Rights in Geneva. Though it has been a long time coming, the effort was perhaps worth the wait.  The Drafting Team has produced a Draft Hague Rules on Business and Human Rights Arbitration which is now ready for public consultation.  

If you are at all interested in this area--especially in the area of remedies--you might be moved to have a look and make your views known.  This project is likely coming and it will profit from a substantial volume of considered reaction; so make your views known.  Businesses (beyond the usual mega-enterprises heavily involved in the field already) and  civil society (beyond the mega global organs already deeply embedded in these conversations) ought to make their views known.  The development of joint positions might also be valuable among affinity groups for greater impact. 

The call for public comment circulated by Katerina Yiannibas follows along with relevant links and the "Introductory Note" and Article 1 (Preamble).  The Draft Rules contain 51 Articles and a Code of Conduct (also reproduced below). Be aware that comments must be submitted in the boxes provided  to be considered by the Drafting Team; but comments may be freely circulated or directed elsewhere as well if the object is for greater engagement and reaction by other actors. It is my hope as well that the institutional organs of the new Belt and Road Initiative that focus on remedy will also reach out. My comments will follow in a future post.


Public consultation open: Draft Hague Rules on Business and Human Rights Arbitration
I am very pleased to present you with the draft text of The Hague Rules on Business and Human Rights Arbitration. The public consultation is open to anybody with an interest to respond and to be involved.

On behalf of the Drafting Team, we therefore kindly ask you to share the attached document with those within your network. The text of the draft rule, as well as background documents, are also available online from the project website:

To participate in the consultation process, you are requested to provide input in the document itself by means of comment boxes per article. In order to allow the Drafting Team to digest what we hope will be a large number of comments in time for the publication of the Rules on 10 December, the consultation will close on 25 August 2019. You are encouraged to offer both general reactions and article-by-article comments to any or all draft text. Please send your saved PDF form with your comments to the following email address:

Thank you in advance for your interest in and contribution to our work.


* * *

No comments: