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Home Posts tagged "arbitration"

UNCITRAL and ISDS Reforms: What Makes Something Fly?

Published on February 11, 2020        Author:  and

 

When conducting an international negotiation, the Chair has to ask him or herself: what makes something fly? This question really has two parts. The first concerns the negotiations themselves. Once you’ve taken off and achieved a certain cruising speed and altitude, how do you keep the momentum going? Will some flight paths be smoother than others? Are you moving toward a safe landing zone, even if it is some distance away? The second concerns the products you are developing in those negotiations. Are some options more aerodynamic than others? Are some more likely to achieve lift off? What component parts need to be designed and built? Is there an overall plan about how the pieces might be put together in the end?

These are questions we thought about as we watched the UNCITRAL process unfold in late January. On one level, it might have been the week when one could have expected to see some turbulence. Since the process started three years ago, this was the first time that the Multilateral Investment Court was formally on the agenda for discussion and it is clear that the views of states are divided on its merits. But on Monday, the Chair adeptly steered the group from high level questions (Is an investment court better than ISDS? Is a particular state for or against such a court?) to more technical engineering work (e.g., What are the ways of constructing an appeal? Which options are available for financing a permanent body? What issues need to be resolved regarding enforcement? What are the options for appointments?).

This approach meant that, instead of being an arena in which states rethink the system’s fundamentals (eg what are the purposes of investment treaties) or engage in high level policy positioning (eg do they support a court or arbitration), the Working Group began to feel a bit like a team of engineers breaking down a complex design challenge into its component parts. Each part undergoes preliminary analysis and troubleshooting in the Working Group, with states suggesting potential models or raising design concerns and considerations with the Secretariat, and tasking the Secretariat with further research and with creating prototypes for each part. Many delegates proved themselves to be serious engineers, coming well-prepared to engage in technical questions. In the process, momentum toward a panoply of reforms seems to be building as participants work collectively on individual design issues. Read the rest of this entry…

 

“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