Arbitration: The International Journal of Arbitration, Mediation and Dispute Management
Volume 86, Issue 2 (2020) pp. 187 – 200

https://doi.org/10.54648/amdm2020015

Abstract

In the light of the inception of the human rights litigation revolution in the 1980s and its erosion of the traditionally preeminent perspective that arbitration and human rights constitute distinct, mutually exclusive dimensions of legal discourse, the purpose of this essay is to analyse, firstly, whether there is an overlap between arbitration and human rights and, secondly, the extent to which such exists. This essay contends that rather than employ the term ‘overlap’, arbitration in its modern form is, and has, in fact, shown itself, capable of reinforcing human rights. This contention is examined in relation to the historic scepticism concerning the potential of the arbitration system to undermine human rights protections (Part I), the perceived bias of the arbitration system towards the interests of commercial parties over those of the public (Part II), the general lack of access to effective remedies for victims of business-related human rights violations (Part III), the incorporation of third party beneficiary rights into commercial contracts to ensure compliance with human rights norms (Part IV), and the ease of enforcement regarding arbitral awards as opposed to court judgments (Part V). Nevertheless, despite the substantial progress that has been made thus far, this essay concludes that further progress is still needed.

Extract

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