A/HRC/38/49
innovations involving a smart collaborative mix of various approaches to dialogue,
mediation and arbitration. This included the creation of an access to remedy fund aimed at
strengthening the institutions and processes for ensuring access to justice for victims of
human rights abuse in which business enterprises played a role. The aim would be to solicit
funds from private entities and individuals to support specific projects designed to remove
institutional barriers to remedy and to strengthen dispute resolution processes. Another
proposal was the creation of a business and human rights arbitration panel available either
to victims of human rights violations who wish to bring claims against businesses, or to
resolve disputes involving human rights-related claims between commercial parties (for
example, where a supplier fails to comply with certain contractually imposed human rights
obligations).
59.
Another discussion centred on the role of effective mediation in more effectively
addressing community grievances with regard to business-related human rights impacts,
and consequently contributing to sustainable development for the community. The main
lessons learned described by independent accountability mechanisms, non-governmental
organizations and business enterprises included the need for capacity-building on all sides;
the need for joint fact-finding or external expertise trusted by both sides; clear ground rules
accepted by both sides; the identification of legitimate representatives of victims; the
proactive inclusion of women from affected communities (if they are not included at the
table); recognition by business enterprises that conflict is not in their interest, and that their
relationship with a community should be seen through a long-term lens; and the
effectiveness of operational-level grievance mechanisms in addressing grievances early and
before they escalate.
60.
In another discussion, participants focused on the role of corporate counsel and law
firms, which among other things addressed the role of the “wise counsellor” and the
question of pro bono legal support to victims. With regard to the former issue, participants
emphasized the importance of the Practical Guide on Business and Human Rights for
Business Lawyers of the International Bar Association. 8 They noted that corporate lawyers
could and should play a proactive role in advising their corporate clients on human rights
due diligence, which ultimately would be beneficial to corporate governance and lead to
better supply chain and risk management. Bad human rights due diligence and failure to
take a role in addressing legitimate calls for remedy would eventually come back to haunt a
company. The role of a wise legal counsellor would be to put information on human rights
abuse and risks in context. With regard to the importance of strengthening pro bono legal
support to communities, participants noted that there was a great need to address current
inequality of legal arms between communities and transnational corporations. There was
also a need for lawyers who are both independent and competent in business and human
rights-type litigation. Such legal support was scarce, and communities might not have the
resources to engage competent lawyers where they can be found. Forum participants
welcomed an idea proposed by the Working Group of exploring a pro bono network, but
also highlighted a range of practical challenges. One critical point was the need to build
capacity at the local level and to tap into local legal expertise. There was also a need to map
and broaden existing networks of pro bono legal support provided by, for example, existing
human rights clinics, and to facilitate knowledge-sharing.
IV. Action on all three pillars
A.
State action
61.
The Working Group and other stakeholders acknowledged that legal developments
in several jurisdictions had the potential to create positive change. It was also noted — as
stressed in the Guiding Principles — that States should not assume that businesses
invariably prefer or benefit from State inaction, and that they should consider a smart
8
14
Available from www.ibanet.org/LPRU/Business-and-Human-Rights-Documents.aspx.
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