Home Articles posted by Timothy McKenzie

“Culturally Appropriate and Rights-Compatible”: The Esprit De Corps Of the United Nations Guiding Principles on Business and Human Rights & the Hague Rules on Business and Human Rights Arbitration

Published on February 4, 2020        Author:  and


Concluding a long journey of consultations and elaborations, the Hague Rules on Business and Human Rights Arbitration (the “Hague Rules” or “the Rules”) were launched on 12 December 2019 at the Peace Palace in The Hague, Netherlands. The Hague Rules – the first of their kind— serve to provide a concrete framework for arbitrating business and human rights (“BHR”) disputes and are the manifestation of over five years of efforts involving the elaboration of the concept of business and human rights arbitration, consultation with numerous stakeholders and drafting of the text (see, e.g., here and here).

While ground-breaking in their own right, the Hague Rules join an elaborate framework of legislation in the rapidly evolving field of BHR. While a full overview of the hard and soft legal framework surrounding BHR would exceed the parameters of this post (for example, the Draft UN Treaty on Business and Human Rights is already the source of ample media attention) any conversation on business and human rights would be amiss without mentioning the United Nations Guiding Principles on Business and Human Rights (the “UNGPs” or “UN Guiding Principles”). As the authoritative global standard on BHR, the UNGPs are imperative to preventing and addressing the adverse human rights impacts linked to business activity, and the interlinkages between the UNGPs and the Hague Rules shed light on coherence in this field.

Overview of the UNGPs

Unanimously endorsed by the United Nations Human Rights Council on 16 June 2011, the UNGPs are the first globally accepted standard articulating States’ duty to protect human rights from impacts of business activities, while recognizing companies’ responsibility to respect human rights throughout their operations and their business relationships. The UN Human Rights Council established the UN Working Group on business & human rights in the same resolution. More specifically, the UNGPs are based on three pillars, outlining how states and business should implement the framework:

  • Pillar I: The state duty to protect human rights;
  • Pillar II: The corporate responsibility to respect human rights;
  • Pillar III: Access to remedy for victims of business-related abuses.

Since being endorsed in 2011, the UNGPs have received wide support from civil society, the corporate sector, and states and frequently serve as the standard for various policy commitments. Read the rest of this entry…

Filed under: Human Rights

An Analysis of the Use of ICJ Jurisprudence in Investor-State Dispute Settlement

Published on May 13, 2019        Author: 

Last October 2018, the International Court of Justice (“ICJ” or “the Court”) issued its merits judgment in Obligation to Negotiate Access to the Pacific Ocean (Bolivia v. Chile). In a brief passage, the Court summarily dismissed Bolivia’s argument that the doctrine of “legitimate expectations” exists in general international law outside the context of fair and equitable treatment clauses. Despite the brevity of the Court’s analysis – and the minor importance of the legitimate expectations issue in that case – this finding drew attention from media outlets dedicated to investor-State dispute settlement (“ISDS”), including IAReporter. That the discussion of legitimate expectations in the Bolivia v. Chilejudgment was considered newsworthy in the ISDS sphere is a reflection of the importance that ISDS practitioners place on ICJ jurisprudence. As Professor Alain Pellet observed in a 2013 lecture, “[n]ot only do … investment tribunals… refer to the jurisprudence of the World Court, but they show a particular deference to it.”

There is some evidence, discussed below, to suggest that ISDS tribunals have referred to ICJ jurisprudence with increased frequency in recent years. Moreover, as ICJ President Abdulqawi Ahmed Yusuf highlighted in his October 2018 speech to the U.N. General Assembly, the Court today is particularly busy. There may thus be even more opportunities for jurisprudential cross-pollination in the near future. Now is an opportune time to consider why, when, and how investor-State tribunals refer to ICJ jurisprudence.

Read the rest of this entry…

Comments Off on An Analysis of the Use of ICJ Jurisprudence in Investor-State Dispute Settlement