From Aspiration to Public Policy: Imprinting UNGP-Aligned Footprints of Corporate Responsibility and Accountability into the Shifting Sands of International Arbitration Practice

Abstract

Abstract Endorsed more than a decade ago by the UN Human Rights Council, the UN Guiding Principles for Business and Human Rights (UNGPs) articulate the responsibilities of States and corporations for human rights. Since then, the issue of corporate responsibility for human rights, and also the environment, and how it ought to be recognized and enforced, has attracted increasing attention. In more recent years, States have promulgated a flurried storm of ESG regulations requiring disclosure of human rights or climate risks or mandating human rights due diligence across global supply chain networks, intensified their transition to greener economies, and continued to negotiate treaties infused with dreams of more sustainable investment and development. Against this backdrop, in October 2023, a UN Special Rapporteur presented a report that condemned the international arbitration system for prioritizing the protection of corporate property rights over the protection of international human rights and the environment. In tracing the development of a ‘soft law’ aspiration of corporate responsibility to inscriptions into ‘hard law’ international investment law treaty instruments and then considering how those inscriptions have been interpreted and applied by tribunals, this article finds that despite the nascent recognition of corporate responsibility for human rights and the environment, the enforcement of accountability for that responsibility in international arbitral practice is currently misaligned with the UNGPs and with other fundamental tenets of international law. This article subsequently explores the opportunity, and implications, for imprinting stronger footprints of responsibility and accountability in international arbitral practice, including through the potential recognition of new international public policy upholding corporate responsibility for human rights and the environment, and in doing so, highlights the need for greater cross-industry, multidisciplinary and multilateral dialogue on an issue of not only global significance, but with global impact.