Using Legal Waivers in Operational-Level Grievance Mechanisms and their impact on Access to Remedies in Business and Human Rights

Abstract

In disputes between corporations and individuals, those seeking remedies through court litigation may find themselves in protracted legal and financial battles. Right-holders may face possible structural disadvantages if they do not have access to adequate resources, whereas corporations are risking their market reputation. Because of the risks involved, corporations may establish private processes to settle disputes outside of courts and avoid litigation. During the process, corporations use different tools that facilitate dispute settlement, which may adversely affect the right to access judicial remedies. One such tool is a legal waiver.

This thesis investigates the use of legal waivers by corporations in private processes (also called operational-level grievance mechanisms) to settle human rights claims using cases from Papua New Guinea and Tanzania. Through examining the two cases, I explore the use of legal waivers to facilitate corporate-friendly remedies while limiting the right of victims to access judicial remedies. The use of legal waivers in private processes raises doubts regarding their consistency with different legal frameworks, such as international human rights law and the United Nations Guiding Principles on Business and Human Rights.

The thesis interrogates legal waivers through multiple lenses, such as the role of inequality of bargaining power, the emerging regulatory gulf between states and corporations and the legal validity of waivers as per the domestic laws of Papua New Guinea and Tanzania. It concludes that legal waivers should be transparent, facilitate victim-oriented remedies, be limited to civil claims and not be a tool for enforcing standardised remedies.