Is an International Arbitral Tribunal the Answer to the Challenges of Litigating Transnational Human Rights Cases in a Post-Kiobel World?
19 Pages Posted: 19 Dec 2014 Last revised: 25 Aug 2015
Date Written: 2015
Just a few months after a symposium was held at the UCLA School of Law on the future of international human rights litigation in the wake of Kiobel v. Royal Dutch Petroleum, — an assemblage that included leading lawyers with significant practical experience in human rights cases, academics, U.S. government officials, and one federal appellate judge — a group of international lawyers and human rights activists put forward a proposal for the establishment of an international arbitral tribunal on business and human rights (the “Tribunal”). The proposal would encourage the filing of international human rights cases not before national courts, which have been the central fora for transnational human rights litigation and which were the subject of the UCLA symposium, but before a special international arbitral tribunal. Given timing, the UCLA symposium did not have the benefit of considering the proposed Tribunal’s approach. This Article seeks to update the symposium discussions in light of this recent proposal and post-Kiobel case law.
In broad outline, the Tribunal would hear claims by victims of human rights abuses against corporations that were allegedly complicit in such violations. According to the proposal, the Tribunal would “enforce international human rights law wherever pre-dispute commercial contracts and post-dispute arbitral agreements so provide,” regardless of the locus of the tort or the nationality of the parties. Should it find liability, the Tribunal could award legal and injunctive relief. It would operate based on the consent of the parties.
As the Tribunal is presently outlined, it would denationalize human rights litigation. It would encourage litigants to forego at their choosing national courts (and in some cases national law) and use an international arbitral tribunal to provide recourse to victims and (hopefully) encourage better transnational business practices to support the cause of human rights.
The Tribunal is proposed, in part, to deal with the fact that most transnational human rights claims against corporations under the Alien Tort Statute (“ATS”) will be subject to dismissal before U.S. federal courts. In light of the fact that most cases involving alleged international human rights violations on the part of corporations would not be subject to suit in U.S. federal courts post-Kiobel, although they may be subject to suit elsewhere, the proposed international arbitral tribunal would arguably fill an access-to-justice gap in support of human rights.
To be clear, international human rights is of the utmost importance. Should a tort be committed by a corporation or any other actor, a victim should have recourse to justice somewhere. Yet, is an international arbitral tribunal the right approach in a post-Kiobel world?
In answering this question, this Article first provides in Part I background on the state of U.S. federal case law post-Kiobel. It then explains in Part II the proposed Tribunal and examines its benefits and disadvantages. Finally, the Article argues in Part III for a different approach. Human rights litigation should be subject to national laws, courts, and legislative processes. Nation states and parties should be reluctant to turn over transnational human rights litigation to the proposed Tribunal, at least as it is currently conceived. Instead, a renewed focus on national law and regulatory cooperation between nation states should first be explored.
Keywords: International arbitral tribunal, Arbitration, Human rights, Kiobel v. Royal Dutch Petroleum, Corporation, transnational
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