In the context of corporate accountability and remedy, the inequality of arms is an oft-cited concern. A corporate opponent is likely to have more financial resources, organization and access to relevant information in the pursuit and course of conflict resolution. For rights holders facing a corporate opponent, understanding both the resulting problem and the potential solution relies in part on an understanding of power. Power can be defined as a lack of dependence on others or more simply put, to have an ability. Power is influenced by a broad range of factors and is often situation specific. Financial resources, skill, and information are all sources of power, but certainly not the only bases. Choice derived from options is another source of power. In my course on negotiation, I have found that novice negotiators focus on what they want. The early lessons help them to identify what they need (core interests) and just as importantly, and most often overlooked as a source of power, the viability of their alternatives. This sets the parameters for what is possible. In a world of inequality of resources, providing enforceable alternatives to rights holders and including them in the process of designing those choices are ways of giving them power.

The many roads to remedy

The United Nations Guiding Principles on Business and Human Rights (UNGP) recognize that there are various paths to remedy. Pillar III of the UNGPs on access to remedy in fact sets out that States have an obligation to consider the various ways to promote access to remedy to ensure the effectiveness of both judicial and non-judicial, State and non-Stated based mechanisms when addressing business-related human rights abuses, including considering ways to reduce legal, practical and other relevant barriers that could lead to a denial of access to remedy. The UNGPs are therefore grounded in the notion of choice as it pertains to dispute resolution. Nonetheless, in the scholarship on dispute resolution mechanisms, we tend to reflect on them one by one, analyzing the shortcomings and potential of individual mechanisms as measured against the effectiveness criteria of the UNGPs (Principle 31: Mechanisms should be legitimate, accessible, predicable, equitable, transparent, rights-compatible and a source of continuous learning). Not enough research focuses on how diverse mechanisms can intertwine and work in lockstep to provide real options to a diverse set of rights holders in a complex and varied landscape of human rights impacts.

To be clear, the development of a diverse dispute management system is not about the displacement of litigation or the privatization of justice. It is about choice in a global business context riddled with denials of justice. Some call it gap-filling, I consider it a powerful gift of viable and effective alternatives for those seeking to enforce their rights.

Input-driven system design

The work lies in identifying the components and order of a dispute management system, and by system, I am referring to an interconnected network of dispute resolution mechanisms. The tension lies in determining who gets input into the design. My argument rests on the premise that the more representative and tailored a system to the needs of the interested parties, the more legitimate, appropriate and effective the system becomes. And not only for the opportunity to provide access to remedy for rights holders, but also for the opportunity to set clear expectations concerning rights and obligations of the interested parties, which has the wonderful potential to prevent conflict. Enter another base of power: knowledge. Implicating the end users, the promoters and the guardians of a dispute management system in its design is a way of promoting knowledge about rights and obligations. There are emerging best practices that shed more light here: worker driven initiatives, escalation mechanisms, public consultation and community involvement.

The Coalition of Immokalee Workers’ (CIW) Fair Food Program (FFP), initiated in 2011, is an example of Worker-driven Social Responsibility (WSR)  that includes a number of monitoring tools, enforcement strategies and mechanisms to address labor and human issues on participating fruit and vegetable farms. The Coalition is comprised of farmers, farmworkers, and retail food companies. The program includes worker-to-worker education, a complaint mechanism to facilitate reporting without retaliation to a separate not for profit organization (Fair Foods Standards Council (FFSC)), FFSC field investigations, and arbitration for appeals by participating growers in the event that agreement cannot be reached on complaint resolutions. In the years since the project was initiated, only one appeal has gone to arbitration, a testament to the model’s effectiveness in preventing disputes.

In my own experience as a drafter of The Hague Rules on Business and Human Rights Arbitration (The Hague Rules), I can attest to the value of including diverse perspectives in system design. While our drafting team possessed distinct areas of knowledge from different geographical areas, we are but fourteen people. To inform our process of identifying the elements particular to resolving business-related human rights abuses, we assembled a Sounding Board of nearly 250 individuals representing diverse interests: general counsels of leading multinationals, environmental NGOs, arbitrators, human rights defenders, government representatives, national human rights institutes, labor unions, international organizations, to name a few. We held two rounds of global consultation before producing the final draft of the Rules. The input we received was invaluable. We gained a plurality of perspectives that our particular experiences did not necessarily provide. Most importantly we gained information that better allowed us to tailor the Rules to the eventual end users. Giving choice and alternatives to the end users was also of great interest to our Drafting Team. For example, under Article 56 of The Hague Rules, at any time during the course of the arbitral proceedings, parties may agree to stay proceedings and resort to negotiation, mediation, conciliation or other facilitation methods to resolve their dispute.The Rules seek to facilitate resort to other formal and informal means of collaborative settlement, which remain important complementary mechanisms to ensure the greatest possible access to remedy under Pillar III of the UN Guiding Principles. Arbitration may also serve as an escalation mechanism and a backstop, as seen in the Fair Food Program, in order to enhance the effectiveness of other forms of dispute resolution.

Options and inclusiveness that promote information exchange to clarify rights and obligations are key to building more balanced systems of remedy. And while inclusiveness is important for the design of dispute resolutions systems, independence and enforceability are essential in their implementation. As elaborated in the International Commission of Jurists’ (ICJ) report on Effective Operational-level Grievance Mechanisms, external independent third party remedial mechanisms are key to establishing legitimacy in the eyes of plaintiffs and communities. Some States have also built on this model in the investment context with the creation of an “investment ombudsperson” to identify systemic grievances by foreign investors in specific areas such as labor, environment, finance, and infrastructure so as to facilitate policy-making and to prevent disputes. Power comes in many forms. Considering all the sources of power can shape our perception of fairness, and at best, help us to respect one another.

Editor’s note: the topic of grievance mechanisms and related aspects of the right to remedy have been explored in a number of Business and Human Rights Journal articles. Jonathan Kaufman and Katherine McDonnell have written on community-driven operational grievance mechanisms, Benjamin Thompson on effectiveness criteria for operational-level grievance mechanisms, and Karyn Keenan on the Canadian Corporate Responsibility Ombudsman. Two articles, one by Joana Nabuco and Leticia Aleixo, one by Baskut Tuncak, have explored different remedy-related issues following the collapse of the Doce river dam in Brazil. There is also a review by Manoj Kumar Sinha of a 2016 book on ‘The Role and Impact of Non-Judicial Grievance Mechanisms’. The latest issue of the journal is available here.

Katerina Yiannibas is Associate Professor, University of Deusto and Lecturer-in-Law, Columbia Law School.