Private dispute resolution and the right to an effective remedy in transnational business and human rights

This thesis examines how private dispute resolution (PDR), namely negotiation, mediation, and arbitration, contributes to and/or impairs the realisation of the right to an effective remedy in cases of transnational business-related human rights abuses. Rightsholders often face barriers to access judicial remedies due to jurisdictional challenges, evidentiary obstacles, and economic constraints. In this context, PDR has been promoted by the UN Guiding Principles on Business and Human Rights (UNGPs), as a complementary route to remedy. Yet its diffusion has outpaced the analysis of its effects in relation to international human rights law (IHRL). Using a legal doctrinal methodology grounded in IHRL, the thesis analyses 20 mechanisms employing PDR as a means of remedy and develops three case studies, the Porgera Individual Claims Programme, the Renova Foundation’s Mediation Programme, and the Bangladesh Accord arbitrations. It analyses their procedural design and remedial outcomes against the content of the right to an effective remedy. The findings indicate PDR’s dual character: it can contribute to the realisation of this right when it is independently administered, accessible, participatory, protective against retaliation, and capable of delivering diverse forms of reparation. However, more commonly, it impairs the right’s realisation through restrictive eligibility, burdensome proof requirements, company-influenced administration, standardised compensation packages, and legal waivers that limit access to courts. The thesis concludes that PDR should not substitute judicial remedies and that its legitimacy depends on public governance, including oversight and regulation, that secures compatibility with IHRL and reaffirms States’ role as guarantors of remedy.