The webinar explored the substantial impact of Alternative Dispute Resolution (ADR) in advancing the business and human rights agenda. It also shed light on the significant influence that states and companies can exert on human rights, whether as positive contributors or negative influencers. Moreover, it examined the increasing effectiveness of ADR in providing comprehensive remedies for human rights violations and emphasized the importance of integrating ADR into current legal frameworks to enhance access to justice for victims.
The third pillar of the United Nations General Principles (UNGPs), known as “Access to Remedy,” underscores the obligation of states to ensure that individuals affected by human rights abuses within their jurisdiction have access to effective remedies. This can be achieved through various channels, including judicial, administrative, legislative, or other appropriate means, thereby enabling victims to seek redress and attain justice.
What constitutes Good Progress?
- Coherence: Integrating ADR mechanisms into National Action Plans and legislation is crucial for fostering access to remedies.
- Clarity: Clear and specific rules are needed to guide the arbitration of disputes related to the human rights impacts of business.
- Legitimacy, Effectiveness, and Rights Compatibility: ADR processes must be legitimate, effective, and compatible with human rights standards.
- Education and Awareness: Promoting education and awareness about ADR processes among stakeholders is essential.
While Alternative Dispute Resolution (ADR) presents numerous advantages, litigation may be more suitable in cases where substantial harm has occurred to guarantee that victims attain justice. Access to justice continues to be a significant obstacle for marginalized individuals and communities adversely affected by the operations of certain multinational corporations, particularly in developing nations. For instance, impacts such as industrial pollution and accidents leading to water scarcity or community displacement, as well as issues concerning worker rights such as hazardous working conditions, forced labour, impediments to collective bargaining, and unfair wage practices, are prevalent. Additionally, deceptive practices such as greenwashing and misleading assertions regarding energy transition and sustainability exacerbate the challenges faced by affected parties.
However, significant global changes are empowering affected communities to assert their rights and seek justice against powerful entities. Furthermore, Alternative Dispute Resolution (ADR) is increasingly offering effective remedies for human rights cases, encompassing compensatory damages, community development projects, and infrastructure initiatives such as the construction of schools and roads. These remedies hold particular significance for victims who have endured prolonged suffering. It’s essential to recognize that ADR is intended to supplement rather than supplant existing mechanisms for dispute resolution.
Areas of Concern:
- Jurisdiction: Determining the appropriate jurisdiction for ADR in transnational disputes can be complex.
- Awareness: There is limited awareness among stakeholders about ADR processes and their benefits.
- Power Imbalance: Significant power disparities exist between large corporations and individual and community rights holders.
- Enforcement: Enforcing arbitral awards, especially across different jurisdictions, poses significant challenges.
- Limited Precedence: Confidentiality in ADR often leads to a lack of publicly available case precedents, affecting consistency.
- Affordability: Financial disparities between rights holders and large corporations can limit access to ADR.
- Accessibility: Ensuring that ADR processes are accessible to all rights holders is vital.
The webinar also underscored the significant role of the Arbitration and Mediation Act (AMA) 2023 in providing a robust legal framework, which Nigeria can utilize in its commercial related disputes with international companies. However, there remains a need for amendments or further enactments of laws to address other disputes, such as those related to Business and Human Rights (BHR).
Alternative Dispute Resolution (ADR) plays a critical role in offering effective and accessible remedies for human rights violations, while also acknowledging the challenges that must be addressed for its efficacy. We hope that this vision will not only be theoretical but also practical and accessible to rights holders, even in the most remote parts of our communities and villages.
We express our sincere appreciation to the President of the Governing Council, Professor Fabian Ajogwu, OFR, SAN, FCArb, and all our esteemed panelists for their invaluable contributions to the webinar. Special thanks to Professor Damilola S. Olawuyi, SAN, FCArb, Shola Oshodi-John FCArb, Claudia Annacker, Tolulope Aderemi, Daniel Leader, Florence Shako, Dr. Oyeniyi Abe, and Idamwenhor Napoleon Enayaba for their insightful inputs.
