International arbitration as a means to protect human rights: analysis of the Hague Rules on Business and Human Rights Arbitration

Abstract

This article analyses the Hague Rules on Business and Human Rights Arbitration that were published in December 2019. The Hague Rules state how arbitration proceedings should resolve disputes arising from the influence of commercial activity in general on human rights. The purpose of the article is to assess the efficiency of the Hague Rules in settling such disputes by examining their features. The first part of the article studies the possibility of referring human rights disputes to international arbitration. In particular, the author examines the current practice of international investment tribunals and specifies the following situations where arbitrators deal with issues of human rights violations: to accept jurisdiction over counterclaims by host states against foreign investors; to interpret and provide guidance for establishing international investment law standards; to reasonably reduce the amount of compensation awarded to foreign investors in the event of violation by the host state. The author also emphasises that the application of the Hague Rules will enable tribunals to fully exercise their jurisdiction over human rights disputes and to examine such disputes on their merits. Having established the general possibility of referring human rights disputes to international arbitration, the author proceeds by analysing certain features of the Hague Rules, and then considering provisions on the importance of collaborative settlement mechanisms, special requirements to arbitrators, culturally appropriate arbitration proceedings, the possibility of bringing multiparty claims, enhanced requirements to the transparency of the arbitration proceedings and other issues. Finally, the author delves into certain challenges that may impede the practical application of the Hague Rules. In particular, such challenges may include: the fact that the Hague Rules do not solve the problem of the companies’ lack of obligations to protect human rights; the problem of enforcing awards taken in accordance with the Hague Rules; the hindered access of individuals to arbitration proceedings. Despite the above challenges, the author concludes that the Hague Rules may become a rather powerful instrument as an additional mechanism to resolve human rights disputes.