Non judicial dispute resolution in the business and human rights arena and the relevant business skills

Obligation for states to ensure effective remedy for human rights (related) violations – E.g. Art. 2(3) ICCPR and art. 13 ECHR (Guiding principles of the Ruggie framework, judicial and non-judicial) – Conduct prompt, thorough and fair investigations – Provide access to prompt, effective and impartial decision maker or mechanism with the power to hear and investigate complaints (process) – Imposing appropriate sanctions and where appropriate provide for reparation (outcome) – Provide information on violation Access to remedy (states)

Obligation for business to respect human rights – United Nations Guiding Principles for Business and Human Rights, OECD Guidelines for Multinational Enterprises – Not binding as such – Societal expectations, reputational damage – Three pillars of UNGP: I states need to protect, II business should respect and III access to remedy – OECD NCP complaint mechanism may have other consequences (no access to government procurement or subsidies) Access to remedy (business)

Will they be aware of local grievances? – Complex environments (e.g. post (civil) war zones) – More companies may be active in area (some state owned) – State might not be interested in interaction with local communities (e.g. minority groups) and incentivizes economic development Obligation for companies? – Guiding principle 29: business should establish or participate in effective operational level grievance mechanisms – Effectiveness relates to process (Guiding Principle 31) as well as outcomes Access to remedy (business)

Process (Guiding principle 31): – Legitimate (enabling trust from the stakeholder groups) – Accessible (known to all stakeholders) – Predictable (clear and known procedure with (indicative) timeframe) – Equitable (access to information, advice and expertise) – Transparent (information on mechanism performance) – Rights compatible – A source of continuous learning – Based on engagement and dialogue Grievance mechanism (process)

Problems in practice: – (Trust in) company based mechanism Applicable norms Very common and hard to tackle issue (fear for security agencies) Need to engage with all relevant stakeholders (hard to assess, only indigenous (right persons to negotiate, multi level engagement, discriminatory practices) or also state) Need to empower community and provide information and expertise (NGO may help but has its own objectives which are not aligned with community per se) Local neutral and skilled facilitators may help; Chevron Nigeria example Lenghty process of dialogue Alternative: set up of a community driven mechanism in collaboration with the company Litigation in courts may not be in best interest of community and company (dialogue based processes may result in outcomes beyond judicial outcomes) Grievance mechanism

Business skills needed: – The identification of the human rights violated and the responsible party is less important in a dialogue (so focus on these issues might hamper solutions); Nicaragua sugar cane example – Good company negotiators are not always best equipped to act on a companies behalf in dialogue based mechanisms, experience with dialogue based processes is needed and ability to build trust in a mechanism – Business representatives have to engage with decision making power – Do not confide in (local) cultural skills of business or western consultants: often skilled local third party facilitators are needed Grievance mechanism (skills needed)

For more information on mechanisms, stakeholder perspectives and list of skilled local neutrals: Grievance mechanism (more information)