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Giving Victims a Voice – Allowing Victims of Human Rights Violations to Initiate Arbitral Proceedings

- Chris Hikida

In February 2017, the Working Group on Business and Human Rights Arbitration issued a proposal to draft new rules for international arbitration. The rules would allow multinational business enterprises (“MNE”) and victims of human rights violations to use arbitration to settle human rights disputes transnational supply chains and development projects.[1] The authors suggest that MNEs could insert clauses into supply chain and other contracts that would empower victims to participate in the arbitral process—grant victims observer status, allow victims to intervene as parties, or permit victims to initiate arbitration proceedings on their own.

The last option, the right to initiate arbitral claims, can be a critical enforcement tool where supply chain transparency is lacking. A recent report on supply chain transparency released by Human Rights Watch illustrates why it is important to allow victims to participate in the arbitral initiation process.[2] The report follows four years after an eight-story building in Dhaka, Bangladesh housing garment factories collapsed, killing 1,100 people and injuring over 2,000. The incident and two earlier factory fires drew attention to the deplorable conditions for factory workers and underscored the need for corporate responsibility and supply chain transparency.

Following these incidents, a coalition of labor and human rights groups and global unions asked 72 apparel and footwear companies to implement the Apparel and Footwear Supply Chain Transparency Pledge. Under the pledge, companies would agree to disclose the factories that manufacture their products and the factories’ addresses, parent companies, type of products made, and number of workers. The coalition emphasized that transparency would allow workers and labor and human rights advocates to alert apparel companies to human rights abuses in its supplier factories and improve victims’ ability to access companies’ grievance mechanisms. But of the 72 companies contacted, only 17 companies made the pledge to be in alignment with the pledge standards by December 2017.

Allowing workers and other victims of human rights violations to initiate human rights arbitral proceedings could provide immediate access to grievance mechanisms where transparency is unavailable. Arbitral rules could provide mechanisms that allow victims the opportunity to bring claims on their own behalf or initiate actions that could be later picked up by MNEs against supply chain companies. Even where there is a lack of transparency, allowing victims to initiate arbitral claims may alert MNEs that the companies they work with are committing violations. At the very least, the proposed rules could provide a forum where victims could publicize human rights abuses.

[1] See Claes Cronstedt, Jan Eijsbouts & Robert C. Thompson, International Business and Human Rights Arbitration (Feb. 13, 2017), available at http://www.l4bb.org/news/TribunalV6.pdf.

[2] See Human Rights Watch et al., Follow The Thread: The Need for Supply Chain Transparency in the Garment and Footwear Industry (Apr. 20, 2017), available at https://www.hrw.org/report/2017/04/20/follow-thread/need-supply-chain-transparency-garment-and-footwear-industry.