The adaptability of international arbitration: Reforming the arbitration mechanism to provide effective remedy for business-related human rights abuses

Abstract

This paper analyses the potential for international arbitration to provide effective remedy for business-related human rights abuses. Since the proliferation of international arbitration, the default arbitration mechanism as it stands has been contemplated by and large for the resolution of cross-border commercial disputes where the primary interests are efficiency and finality. However, there is evidence that human rights issues have emerged in international arbitration. Accordingly, if arbitration is to be used in such cases, the mechanism must be adapted in light of the particular issues that arise in the adjudication of human rights; the balance between transparency and confidentiality, reprisals against victims and human rights defenders, collective redress, financial assistance, the applicability of human rights standards. If proper procedures are in place to contemplate the particular interests involved in cases where the substantive claims involve human rights, the advantage of international arbitration is that it can provide direct access in a neutral forum for holding companies accountable where national jurisdictions are unavailable or difficult to access. This article begins by analysing the historical development of international arbitration so as to demonstrate a pattern of adaptability and flexibility vis-à-vis the subject matter of cross-border disputes. The article will then contemplate the potential of and concerns for international arbitration, putting forward specific recommendations for reforms of the international arbitration mechanism in cases where the substantive claims involve business-related human rights abuses.