Arbitrating Business and Human Rights Disputes
Zeynep Derya TarmanKeeping the negative impacts of business activities on human rights and the weak position of the victims as well as other parties, the Hague Rules on Business and Human Rights Arbitration (Hague Rules) have recently been adopted with the description that international arbitration holds great promise as a method to be used to resolve human rights disputes involving business. While there are criticisms about the practicability and the usefulness of the Hague rules, with certain consideration for improvement, the Hague Rules can be an effective step towards achieving justice for victims of Business and Human Rights violations and abuses. This paper aims to present first the history of creation and analysis of the effectiveness of the Hague Rules, and second, to elaborate on why arbitration is a good option for Business and Human Rights disputes. After that, the paper will present the challenges related to the applicability of the rules followed by its future implications.
İş Dünyası ve İnsan Hakları Uyuşmazlıklarında Tahkim
Zeynep Derya TarmanTicari faaliyetlerin insan hakları üzerindeki olumsuz etkileri ve mağdurların zayıf konumu dikkate alınarak çok uluslu şirketlerin sebep olduğu insan hakları ihlallerinin tahkim yoluyla çözümü için yakın zamanda İş Dünyası ve İnsan Hakları Lahey Tahkim Kuralları (Lahey Kuralları) kabul edilmiştir. Söz konusu Lahey Kurallarının yararlılığı ve elverişliliği konusunda eleştiriler olmakla beraber Kurallar, çok uluslu şirketlerin sebep olduğu insan hakları ihlalleri mağdurlarına adalete erişim konusunda etkin bir yol sunabilir. Bu çalışmanın konusu, Lahey Kurallarının ortaya çıkma sürecini ve tarihçesini kısaca ortaya koyduktan sonra tahkimin insan hakları ihlallerinden doğan uyuşmazlıkların çözümü konusunda neden tercih edilmesi gerektiğini incelemektir. Bu kapsamda, Lahey Kurallarının iş dünyası ve insan hakları uyuşmazlıklarının kendine has özellikleri dikkate alınarak hazırlanmış maddeleri ele alınacaktır. Ayrıca çalışmada Lahey kurallarının eksiklikleri ve geliştirilmesi gereken noktaları üzerinde de durulacaktır.
For centuries, arbitration has been used as an alternative method for dispute resolution to get speedy results for national and international disputes. While courts remain an official state-based dispute resolution mechanism, their lengthy process, lack of specific expertise in disputed issues and, most importantly, their weak mechanism of dealing with international issues make arbitration a more desirable mechanism of dispute resolution. However, not all types of disputes can be solved through arbitration. While there are certain limitations as to what kind of disputes are arbitrable, the list has been broadened in recent years. The most recent type of dispute added to the list is business and human rights violation disputes. Despite the numerous beneficial aspects of multinational corporations, they can cause several human rights violations. While there are global frameworks like the provisions and pillars of the 2011 United Nations Guiding Principles on Business and Human Rights (UNGPs) that require states as well as businesses to protect and respect human rights, human rights have often been impacted by business activities. Especially with the existence of pillar three of the UNGPs which requires access to an effective remedy, business-related human right abuses show an existing remedy gap in principle. Among other forms of remedy, arbitration can represent one form of remedy for victims of corporate human rights abuses.
The development of the Hague Rules is considered to be an important step in filling the existing remedy gap using arbitration as a resort for business and human rights disputes. While public interest in human rights suggests that business and human rights disputes should be resolved in national courts, the weak capacity of courts, corruption, political influence and dysfunction of courts might remain a challenge. To overcome these challenges, reformed courts, new national laws and a far greater ability of national courts to address business and human rights disputes are needed. Until these goals are achieved, there is a need for a mechanism to address business and human rights violation and abuse. Business and human rights arbitration can be a very effective and useful method in this regard.
The Hague Rules on Business and Human Rights were launched officially on 12 December 2019 at a symposium hosted by the Permanent Court of Arbitration in the Peace Palace in The Hague. It is worth noting that the Hague Rules are based on the 2013 United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules and have been adapted to the unique features of business human rights disputes. This paper will explain the main sections and provisions of the Rules, especially which are modified from UNCITRAL Rules to make it compatible with business and human rights disputes.
Despite all criticisms and existing challenges, the Hague Rules are a useful resort to deal with business and human rights disputes. Even though there are many challenges of business and human rights arbitration and application of the Hague Rules, they can be resolved using different methods which will make business and human rights arbitration a useful option for victims as well as businesses. Considering the positive remarks and comments gained by the Hague Rules, it can be assumed that the next step will be seeing corporations include business and human rights arbitration provisions in their contracts. Also, law firms may start advising and explaining to clients, non-governmental organizations and other stakeholders that business and human rights arbitration is a suitable option when they cannot or prefer not to refer to national courts.
