The Drafting Team of the project ‘The Hague Rules on Business and Human Rights Arbitration‘ (The Hague Rules) has collected the views of its members regarding the need for, and the possible elements of The Hague Rules, divided by topic, and produced an Elements Paper. Rather than diving into the technical intricacies of international arbitration, the primary objective of this Elements Paper is to educate, inform and garner input from the potential stakeholders of BHR arbitration in view of the next step of the project of drafting of the Hague Rules.
For this reason, instead of putting forward recommendations, the Elements Paper discusses the complexity of the issues that will have to be taken into account in the following phase of the drafting of the BHR Arbitration Rules. The direct involvement in the present process of a variety of stakeholders is particularly important, given that BHR disputes cut across a large number of sectors and impinge upon divergent – and even opposing – interests. The Drafting Team believes that it would be premature to take any definitive decisions concerning the structure and content of the Arbitration Rules before carrying out the present consultation procedure.
The Drafting Team acknowledges that arbitration rules can only address procedural matters and leave out important issues of substance relating to BHR arbitration. It appears inevitable that many solutions to the identified issues will be best tackled outside of the Arbitration Rules (e.g. through the drafting of model arbitration clauses, model substantive clauses for contracts, or external mechanisms). Therefore, stakeholders participating in the present consultation are asked to support the Drafting Team also by distinguishing procedural and substantive issues arising out BHR arbitration, in addition to flagging any issues or considerations that have been missed.
We look forward to receiving your contribution!
Contributors are kindly requested to read and consider the Elements Paper. The Elements Paper is structured as a compilation of issues for discussion accompanied, where relevant, by a set of questions. The Elements Paper provides a link to an online platform where contributors are provided a space to answer the questions posed. Contributors may answer some or all the questions. Contributors may answer some or all the questions. Individual contributions will not be made public. The Drafting Team will instead publish an analytical document providing an overview of the results of the consultation. The consultation procedure will begin on 23 November 2018 and will end on 31 January 2019.