Private Dispute Resolution and the Right to an Effective Remedy in Transnational Business and Human Rights

This thesis examines how private dispute resolution (PDR) processes, namely negotiation, mediation, and arbitration, contribute to and/or impair the realisation of the right to an effective remedy in cases of transnational business-related human rights abuses. Rightsholders of such abuses face persistent barriers to judicial remedies in both corporations’ host and home States, including jurisdictional limits, evidentiary thresholds, and political and economic constraints. In this context, PDR has emerged as a complementary remedial avenue, legitimised and promoted by the UN Guiding Principles on Business and Human Rights (UNGPs). Nevertheless, despite the rise of PDR as remedial processes, it operates without clear standards under international human rights law (IHRL), raising concerns about its compatibility with the right to an effective remedy. The thesis then adopts a legal doctrinal methodology grounded in IHRL, with descriptive socio-legal elements, to assess the rise, structure, and effects of PDR employed as a means of remedy for transnational business-related human rights abuses. It maps 20 examples of such use, develops three case analyses (i.e. Porgera Individual Claims Programme, the Renova Foundation’s Mediation Programme, and the Bangladesh Accord Arbitrations), and evaluates their procedural and substantive characteristics against the right to an effective remedy. The analysis demonstrates that PDR has a dual character by contributing to the realisation of the right to an effective remedy when designed with independent administration, broad eligibility, participatory procedures, diverse forms of reparation, safeguards against retaliation, among other features. However, PDR more frequently impairs the realisation of this right through restrictive eligibility, burdensome evidentiary requirements, company-influenced procedural administration, reliance on standardised compensation, and using legal waivers through which affected individuals relinquish their rights to access judicial remedies. The thesis concludes that, besides not substituting judicial remedies, PDR’s contribution to access to remedy depends on public governance measures that embed oversight and regulation to ensure compatibility with IHRL. States must reclaim their central role as guarantors of remedy, ensuring that PDR evolves into a credible complement, rather than a privatised substitute, to judicial processes.