Between the Devil and the Deep Blue Sea—Towards Access to Justice for Local communities in Investor-state Arbitration or Business and Human Rights Arbitration
Investmenat law, Business and Human Rights, International Commercial Arbitration,International Investment Arbitration, Business and Human Rights Arbitration, Access to Justice,
This paper focuses on the proposal to adapt international arbitration to business disputes involving human rights (Business and Human Rights Arbitration—BHR arbitration). The BHR Arbitration proposal seeks to give local communities, who are victims of MNCs’ human rights and environmental abuse, access to justice in a specialized international arbitration tribunal— Business and Human Rights Arbitration Tribunal (BHR Arbitration Tribunal). Through a comparison between investor-state Arbitration (ISA) and BHR Arbitration, this paper contends that it is more efficient to reform ISA than to create a BHR Arbitration tribunal. Reforming ISA prevents possible parallel arbitration system that may arise from the duplication of international governance efforts. It also reduces local communities’ resort to transnational litigation, which is procedurally complex and often unsuccessful. Therefore, a possible ISA reform makes the BHR arbitration proposal superfluous or, at best, limited in its application. Creating a new arbitral structure that is untested and fraught with procedural and substantive complexities may not worth the trouble.
The major research question that this paper answers is:
considering the parallels between the ISA and proposed BHR Arbitration, and the prospect of creating a one-stop shop for business and human rights abuse, is BHR Arbitration a necessary governance effort in international arbitration?
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"Between the Devil and the Deep Blue Sea—Towards Access to Justice for Local communities in Investor-state Arbitration or Business and Human Rights Arbitration."
Osgoode Hall Law Journal
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