1 Introduction
The ever-growing advance of global value chains as the mode of production for an increasing number of goods has benefited some economies and societies, both in the Global North and Global South. It can, however, also be associated with exploitative employment and environmental irresponsibility.1 One industry where this is visible is the ict manufacturing industry, where there is evidence of bleak working conditions across the supply chains of leading brands like Apple, Dell, ibm, Sony and many others.2
Western brands have been able to avoid many repercussions for the human rights abuses occurring in their supply chains for two main reasons: firstly, local courts of the host country where the abuse took place can be located in regions where there is not a strong rule of law, or where courts may be corrupt or politically influenced.3 Secondly, courts of the multinational enterprise’s home country can be reluctant to “lift the corporate veil” and punish the businesses “at home” by exercising extraterritorial jurisdiction.4 This was highlighted by the UN High Commissioner for Human Rights, who stated that victims face gaps in both national and international laws, applicable court systems, as well
The Hague Rules on Business and Human Rights Arbitration (the “Hague Rules”) were created to solve the issue of bhr arbitration being underdeveloped. The Hague Rules aim to provide procedures so rightsholders can access justice against corporations or against the parent companies of their employers. The rules are based on the 2013 Arbitration Rules of the UN Commission on International Trade Law, with modifications to address issues which arise uniquely in the bhr arbitration context; issues like recognition and enforcement of the award, transparency in proceedings and many others.7
An analysis shall be conducted to determine which sources are suitable for use as substantive law in business and human rights arbitration under the Hague Rules with regard to the ict manufacturing industry. This analysis will explore the possibility of using international soft law, domestic law or contractual standards.
In the global economy, supply chains are spread across continents; components are mined and manufactured in different countries, assembled in others and usually sold elsewhere.8 This is particularly true in the ict manufacturing sector where raw materials are often extracted from African and South American states, assembled in Asia and sold globally.9 Minerals like gold and copper are used in components of electronic devices like printed circuits, transformers and microchips, and their extraction is often linked to a range of
2 Applicable Substantive Law under the Hague Rules
(1): The arbitral tribunal shall apply the law, rules of law or standards designated by the parties as applicable to the substance of the dispute.12
The choice of law rules has been left open, which is common across various forms of arbitration. Allowing parties to a dispute to decide substantive law is one of the advantages of arbitration and why many businesses prefer it to traditional litigation in domestic courts. It acts as an incentive for businesses to arbitrate as it provides them with more control over the proceedings – a business will prefer to arbitrate with their chosen substantive law rather than litigate where they feel they have a greater chance of losing. This already occurs in the arbitration context where, for example, English law is often chosen in international mining disputes where the parties want to avoid the domestic law of the state where the violations occur, as it may be underdeveloped or unsatisfactory in other ways.13
The commentary to article 46 states that the term “rules of law” was included to permit the possibility to designate applicable law from different legal systems and from non-national sources.14 This openness is emphasized in the commentary where the drafters highlight that the phrase “law, rules of law or standards” in subsection 1 was used for the purpose of providing the “broadest possible flexibility in choosing the normative sources from which the applicable law is drawn,” and provides examples like supply chain codes
The Hague Rules also allow for the combining of sources of law, which is mentioned in the launch report (the “Launch Report”) and the elements paper (the “Elements Paper”) which state the norms can come from several sources.17 This is also possible in international arbitration outside of the bhr context.18 This means parties to arbitration will be able to pick and choose elements and norms from the different sources analysed below to suit the ict manufacturing context. However, it is beyond the scope of this paper to create a new legal framework for ict manufacturing by combining the different sources discussed. The purpose of this paper is to analyse the suitability of the different sources of norms, not to create a framework from these sources to be used in practice.
2.1 What Makes Sources of Law Useful in Business and Human Rights Arbitration?
Regarding bhr arbitration, the accessibility and predictability of substantive law are the most important factors to consider. These characteristics are particularly important to business and human rights arbitration, as they facilitate a fast and efficient process, something which is at the heart of the Hague Rules, and therefore can minimize costs to the parties and achieve access to justice in a reasonable timeframe. The accessibility refers to the ability of the parties, their counsel and the arbitrators to research the law and to ascertain it with a minimum level of difficulty.19 Ideally, the arbitrators hearing the dispute should be able to understand the applicable legal principles without help.20
3 The Use of “Soft Law” Standards
One solution that has been offered is that bhr arbitration can find the substantive norms in soft law.22 Soft law is a term often used in international law. It refers to certain instruments and norms which, while having a certain legal relevance and proximity to law, are not legally binding per se as a matter of law.23 Soft law does not stem from a formal source of law and, as such, lacks binding legal force – businesses are not directly bound by this law and, as such, it is soft. It is further characterized by a certain proximity to law and by its capacity to induce behaviour despite its legally “non-committal quality.”24
3.1 Reasons to Apply Soft Law
The main argument for applying soft law standards in bhr arbitration is that, due to a changing consensus in businesses and human rights, it is being treated as if it were binding, which is referred to as the “hardening” of soft law.25 This would suggest that certain soft law norms have, while starting as soft law,
Another example is the case of Milieudefensie et al. v Royal Dutch Shell from the District Court in the Hague.29 This case is a useful example of the trend in interpreting soft law as if it is hard law in the context of business and human rights, and in particular the hardening of the United Nations Guiding Principles on Business and Human Rights (“ungps”). The court ordered Royal Shell to cut its global carbon dioxide emissions, marking the first time a domestic court has required a business to mitigate its emissions.30 Importantly, the court held that Royal Shell has an obligation to comply with international human rights law (IHR), the ungps, and the goals of the 2015 Paris Agreement, illustrating the hardening of the ungps.31
However, both cases have been criticized. Urbaser v Argentina has been criticized for “clearly not [being] established based on the texts referred to by the tribunal”32 and for its failure to explicitly distinguish between positive and
3.2 Challenges in Applying Soft Law
As previously mentioned, the main argument against the use of soft law is that soft law instruments are not designed to be enforced and, as such, have been drafted in an open-ended manner and so lack accessibility and predictability.36 One example of this is Principle 13 of the ungps which provides, in part, that “the Responsibility to respect human rights requires business enterprises: a) avoid causing or contributing to adverse human rights impacts through their own activities, and address such impacts when they occur.”37 This vague principle raises more questions than it answers – what are businesses expected to do to “avoid” their adverse human rights impacts? Which human rights? This vagueness means it is difficult to determine what is required in concrete terms and therefore whether there has been a breach.38 However, this criticism
3.3 The United Nations Guiding Principles on Business and Human Rights
One piece of soft law mentioned as a potential source of human rights norms for bhr arbitration is the ungps.40 It is one of two examples of soft law provided in the Elements Paper.41 The ungps contain three fundamental principles with relation to the obligations of businesses:42 to have and adhere to a mission statement which is devoted to human rights compliance, to have due diligence commitments aimed at reducing the risk of violations of human rights norms, and to comply with all laws and respect internationally recognized human rights in their operations.43
It is the third of these principles that is most relevant to bhr arbitration.44 This principle means that multinational corporations (MNCs) are expected to comply with both the domestic law of the state in which they are operating as well as some ihr standards. It is thus this principle that will provide the more detailed obligations for mncs when operating in a certain state. It has been clarified in the commentary to Principle 23 that where the domestic context makes it impossible to meet the responsibilities fully, that they are expected to respect the principle of international recognized human rights to the greatest extent possible in the circumstances.45 This principle therefore opens up the ungps to include a whole host of potential sources which could provide more detailed obligations on mncs. However, the effect of this principle and the sources may not be as meaningful as one would hope. Firstly, the domestic law which the mnc ought to follow, as will be discussed in further detail later,
The use of the ungps as the sole applicable substantive law in bhr Arbitration under the Hague Rules is ill-advised. As its critics correctly point out, the ungps have been deliberately drafted in an open-ended manner – they do not provide the detail necessary, and thus the accessibility and predictability needed, for bhr arbitration. This open-ended drafting means they are unsuitable for bhr arbitration generally, not just in the ict manufacturing industry.
3.4 The Organisation for Economic Co-Operation and Development Guidelines for Multinational Enterprises
The oecd Guidelines for Multinational Enterprises have also been suggested as a source of applicable law.46 They are the other soft law document mentioned in the Elements Paper47 and are “non-binding guidance for responsible business conduct in a global context.”48 They are more specific and broader in their scope than previous attempts at regulation by the UN, focusing on compliance with human rights standards.49 For example, they include expectations in areas like employment, industrial relations and the environment.50 The oecd Guidelines, like the ungps, provide that businesses should generally respect human rights within the framework of internationally recognized human rights, ihr obligations of the countries in which they operate, and the relevant domestic laws and regulations.51 However, the oecd Guidelines provide greater detail for certain areas.
In summary, the oecd Guidelines and the ungps are similar in some areas – particularly in the human rights section of the former. The oecd Guidelines go into much more detail on many issues which are touched upon by the ict manufacturing industry, like collective labor rights and worker health and safety. However, they are not perfect as they do not cover all issues. For example, they do not cover resettling of communities, which is often carried out in the extractive industry without the relevant participation of the communities being moved.59
4
The Hague Rules mention the use of “domestic” law when saying “[t]he term “rules of law” in Article 46(1) refers to the possibility for the parties to designate, and for the arbitral tribunal to apply, rules emanating from different legal systems.”60 This is also spelled out more explicitly in the Elements Paper, which refers to standards stemming from, among other sources, “domestic law” and refers to norms arising from national origin.61 This language is also used in the Launch Report.62
4.1 Domestic Law in the Accord on Fire and Building Safety
The use of domestic law is applied in the most recent binding bhr arbitration initiative, the 2018 Accord on Fire and Building Safety in Bangladesh (“the Accord”).63 The Accord was adopted after the Rana Plaza disaster.64 The Accord was originally created on 13th May 2013 and was limited to a 5-year period,65 which was extended with a new Accord in 2018.66 The 2013 Accord did not include a choice of law clause, but when the second Accord was created in 2018 it did include one, stating: “The Accord shall be governed by the law of the Netherlands.”67 Instead of providing a source of substantive law, the 2013 Accord left this matter to be chosen ad hoc for each dispute, in the aim of providing flexibility to the parties under the agreement.68
When looking at specific rights and obligations under domestic law there are two main sources of norms: Constitutional norms and particular human rights obligations imposed on businesses in home states.69
4.2
Constitutional norms provide rights like the right to liberty and life, the prohibition of torture, and the right to freedom of expression.70 Importantly, Constitutional rights evolve with worldwide social views – for example there has been an “environmental rights revolution”71 whereby 148 of the 196 countries which have their own constitution have included some form of the right to the environment.72 As discussed before, environmental degradation is an issue which is strife in ict manufacturing, and so Constitutional rights could be used to provide norms applied in bhr arbitration. However, there are some issues with applying constitutional human rights norms to businesses. The biggest issue with relying on constitutional (and legislative, like the UK’s 1998 Human Rights Act) human rights norms is that they deal fundamentally with the relationship between states and individuals – a relationship of vertical nature – which can make it incongruous with use in horizontal relationships.73
The difficulty of applying constitutional-oriented human rights standards has been shown in several cases.74 One such example from the US is Kiobel v Royal Dutch Petroleum,75 where the Court found that where an Alien Tort Statute (ATS) claim rests on conduct that occurred outside the United States, such a claim must “touch and concern the territory of the United States … with sufficient force to displace the presumption against extraterritorial application.”76 This was further reinforced in the case of Jesner v Arab Bank in the US in 2018, which found that the ats does not permit lawsuits against corporations.77 The use of such human rights standards could overly complicate the arbitration proceedings as opposed to providing an accessible and predictable source of norms.
This argument may be refuted as this trend is subsiding as states are beginning to “pierce the corporate veil” more often, like in the aforementioned Milieudefensie v Royal Shell as well as Vedanta before the UK Supreme Court and
Ultimately the challenge of applying rights designed for use in a vertical relationship – whereby their purpose is to constrain the government – in a horizontal relationship provides difficulty. This difficulty stands in the way of providing accessibility and predictability to bhr arbitration and, as such, its use is ill-advised.
4.3 Using Human Rights Obligations which Are Imposed on Businesses in Home States
In recent years there has been a legislative movement centered around human rights due diligence (“hrdd”) in some western states.80 This influx of legislative initiatives could be used as an alternative to constitutional human rights norms as applicable law in bhr arbitration.81 Of course, the positive of using such legislation is that it is aimed at businesses – posing obligations on them – and so does not follow the same vertical relationship as constitutional rights. This argument has been advanced by Bruno Simma and Giorgia Sangiuolo, who both contributed to the creation of the Hague Rules, stating “due diligence legislation articulates clear substantive environmental, social, and governance rules, the breach of which could be arbitrated under the Hague Rules.”82
5 Contractual Standards that the Parties Choose to Incorporate
The final source of law suggested is to rely on contractual provisions which explicitly refer to human rights guarantees.88 Through contractual provisions, businesses could require their partners and those within their supply-chain to observe and follow particular human rights norms by specifying practices to be
5.1 Why Use Contractual Standards?
The use of contractual standards reflects a shift in the way contracts are viewed.92 Contractual regimes have grown beyond simply involving, for example, governments and investors, to now include community norms and shared understandings like those found in ihr law. This reflects the fact that contracts do not exist independently of their social context as was previously considered to be the case.93 Contracts can be considered as a “morally contingent type of private legislation.”94 This change in how contracts are viewed can be seen in the extractive industry.
5.2 Case Study: The Use of Contractual Standards in the Extractive Industry
As previously mentioned, the extractive industry and the ict manufacturing industry are interlinked due to the extractive industry providing the precious metals needed in ict components. Contracts are the life of extractive industry governance95 and affect various stakeholders – mining companies, governments through investment treaties and contracts, labor unions, local communities and many more. As a result, there has been an increase in extractive industry-related contracts which address issues beyond the private – addressing environmental, social and human rights issues.96 Contracts have
There is an understanding that contracts within this industry should involve the protection of human rights because large extractive industry projects have the tendency to implicate many contracting parties and local communities across multiple jurisdictions.97 One example is in relation to Canada’s Ekati mine, which is operated by BHP Group Limited (BHP) and where indigenous communities were allowed to participate in the negotiation of an environmental agreement which included their direct involvement in the “regulatory process.”98 This shows the trend of allowing third parties to be involved in processes and was further expanded when the Government of Canada, a provincial Government, the mining companies, and indigenous communities participated, as parties, in two environmental agreements formed with regard to the Diavik mine project99 and the De Beers Canada Mining inc Snap Lake diamond project.100 The legally binding agreements which came from this created contractual obligations and responsibilities that the parties could enforce through binding arbitration or through other forms of dispute settlement.101 This example shows that the use of contracts is a viable option to include issues which would traditionally be considered to fall out of the ambit of a contract. While this example is related to environmental issues which are, of
A contractual method for addressing human rights violations in this industry emerged in the form of the Human Rights Undertaking employed by British Petroleum-led Baku-Tbilisi-Ceyhan (btc) Pipeline Company in the Baku-Tbilisi-Ceyhan project.102 Within this document, btc Company took certain undertakings regarding human rights, health, safety, and environmental considerations as part of “a legal, valid and binding obligation.”103 However, the enforceability of the undertaking and the nature of the remedies it provides has been debated – with Lawson-Remer noting that “the Undertaking does not establish the right of locally affected populations to hold the btc Company accountable for injuries relating to human rights, health, safety, or the environment … it remains solely up to the host governments to demand redress from the btc Company for any breach of its human rights commitments.”104 Despite this, the Undertaking demonstrates that it is possible for corporations to be held accountable for their human rights violations through contractual instruments if those instruments are drafted with such an intention.105 Using contractual provisions to protect the human rights at issue in ict manufacturing is therefore a viable option, provided those contractual provisions are drafted with accessibility and predictability in mind. While it is disappointing that in this scenario local rightsholders were forced to trust that their government would not turn a blind-eye,106 the usefulness of contractual provisions containing human rights is clear – they can be used to populate the human rights norms businesses must follow. The fact that, in this scenario, individual rightsholders could not get access to remedies further underlies why bhr arbitration under the Hague Rules is needed.
Having established that human rights norms can be incorporated into contractual standards and be used as a means of applicable law in bhr arbitration, the next question is how businesses and relevant stakeholders would go about
5.3 American Bar Association Model
In its 2018 Report on Human Rights Protections for Workers in International Supply Chains, the American Bar Association (“aba”) included a model contract clause for buyer companies to include in their agreements with their suppliers.107 The most important component of this is a human rights appendix, known as “Schedule P,” whereby the buyer can insert proposed human rights obligations. It is worth noting that the aba does not prescribe the content of this appendix. While it does provide a creative solution to the problem of making bhr obligations relevant to, and at home in, a business context,108 the aba model does not provide a real solution to the problem of locating the obligations of businesses. Furthermore, when looking at the aba model through the lens of bhr arbitration, it becomes clear that the model clauses are designed to apply to intra-supply chain disputes rather than those brought by human rights claimants which bhr arbitration under the Hague Rules looks to promote.109
[Buyer] and [Seller] acknowledge that [Schedule P, or specific provisions of Schedule P] of this agreement was entered into force for the benefit of [Buyer] and [each member of the class(es) of persons referred to in the clause granting arbitration rights to third parties], who are each entitled
to bring a claim [for damages or other specific relief] for violation of the rights in [Schedule P].111
Shan argues that such a clause will most likely be upheld because it is quite unexceptional and is based loosely on similar provisions within the contracts common to several jurisdictions which generally provide that third parties may in their own right enforce a term of the contract if the contract expressly provides that they may, or the term purports to confer a benefit on them.112 This would be a useful way in which human rights obligations could be written into contractual provisions and so could be used in bhr arbitration under the Hague Rules. Such a means of including human rights into contractual provisions would work well in the ict manufacturing context because the industry is spread over many jurisdictions and has human rights implications on a broad range of actors. Such contractual provisions would therefore be able to include not only workers within the supply chain but also third parties who are negatively affected.
6 Conclusion
Ultimately, there is no one source that is useful in isolation as the applicable substantive law in bhr arbitration for the ict manufacturing industry. All sources have their merits and demerits. Soft law sources, while being addressed to businesses, do not have the necessary detail to provide accessibility and predictability to proceedings. The oecd Guidelines provided the most precision on matters relevant to the ict manufacturing industry, but not all, and, as such, cannot be considered useful in isolation. Similarly, domestic law does not provide a single source that can provide accessibility and predictability on all relevant issues. Constitutional rights suffer due to their horizontal relationship, and their use would likely complicate proceedings. Due diligence legislation can provide useful norms, particularly those found in the German Supply Chain Act, but, like the oecd Guidelines, are lacking on some areas of importance to the ict manufacturing industry. Therefore, this leaves the use of contractual standards where the useful norms from soft and domestic law can coalesce into one unified source of norms. The extractive industry has shown that human rights and environmental norms can be included in contracts, and
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French Commercial Code, Article L225-102-4(i).
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