Originally from the American Review of International Arbitration - (ARIA)

ABSTRACT

In December 2019, the Hague Rules on Business and Human Rights Arbitration (the “Hague Rules”) was published. As a set of international arbitration rules, the Hague Rules provide a set of procedures for the arbitration of business-related human rights disputes which arise out of businesses’ commercial relationships or transactions (“BHR arbitration”). In considering why businesses may be willing to consent to BHR arbitration under the Hague Rules, the drafters of the Hague Rules pointed to the 2013 Accord on Fire and Building Safety in Bangladesh (the “Bangladesh Accord”), the first public agreement in which businesses have agreed to BHR arbitration. This article will distinguish the Bangladesh Accord from the Hague Rules by highlighting the instruments’ different approaches to privacy, confidentiality and transparency. In doing so, this article argues that while businesses were incentivised to consent to BHR arbitration under the Bangladesh Accord, it is unlikely that businesses will be similarly incentivised to consent to BHR arbitration under the Hague Rules. This is partly because the Hague Rules go significantly further than the Bangladesh Accord in promoting the transparency of BHR arbitration proceedings. As such, the Hague Rules will significantly increase the level of financial and reputational risk that businesses will be required to assume when consenting to BHR arbitration under them. To incentivise businesses to consent to BHR arbitration under the Hague Rules, this article recommends that the Hague Rules be amended to provide for a higher degree of privacy and confidentiality in BHR arbitration.