Non-Judicial and Judicial Grievance Mechanisms for Addressing Disputes between
Business and Society: Their Roles and Inter-relationships
This short paper is adapted from a background note prepared for a multi-stakeholder
consultation of the UN Secretary-General’s Special Representative for Business and Human
Rights, Professor John Ruggie, on the issue of non-judicial grievance mechanisms. The
consultation was held on 20-21 November 2008 in Boston, was co-organized by the
Corporate Social Responsibility Initiative at Harvard Kennedy School and Oxfam America
and hosted by Foley Hoag. A report of the discussions can be found at:
http://www.business-humanrights.org/Updates/Archive/UNSpecialRepConsultationsworkshops
The consultation was the latest in a series looking at the role of non-judicial grievance
mechanisms in addressing grievances and disputes between companies and the groups in
society that their activities may impact. Earlier discussions had explored the minimum
criteria such mechanisms must conform to in order to be legitimate and effective, as well as
discussing the strengths and weaknesses of existing non-judicial mechanisms and the gaps
that remain to be addressed.
The purpose of the background note was to stimulate discussion about the respective roles,
strengths and weaknesses of both judicial and non-judicial mechanisms in remedying
adverse corporate human rights impacts. Based closely on that note, this paper proposes a
working definition of ‘access to remedy’ and outlines the evolving landscape of non-judicial
mechanisms in the business and human rights area and the importance of their mutually
reinforcing relationship with judicial mechanisms. It then considers a number of
characteristics typically seen as advantages and disadvantages of judicial and non-judicial
mechanisms. The paper concludes with a suggested, initial list of cross-cutting factors that
aggrieved individuals or parties to a dispute may typically want to consider when deciding
whether to use judicial or non-judicial mechanisms in pursuit of a solution.
A.
‘Access to Remedy’: A Working Definition
The current meaning of the word ‘remedy’ is at least threefold: a treatment for an injury or
disease; a means of counteracting something undesirable or making good an undesirable
situation; or a means of legal ‘reparation’ (in the sense of making amends for a wrong).1
The Special Representative’s work on access to remedies for corporate human rights
impacts seeks to explore a range of stakeholder views as to what access to remedy does,
could and should mean in the context of business and human rights. This necessarily entails
addressing both judicial and non-judicial mechanisms for dealing with alleged corporate
abuses, including how such mechanisms can work effectively together. The implications of
existing state obligations to provide access to effective remedies for human rights abuses
committed by third parties, including businesses, and of the individual right to remedy in
international human rights law are considered in a separate study produced by the SRSG.2
For the purposes of this discussion, ‘access to remedy’ is conceptualized as:
See Compact Oxford Dictionary of Current English (Oxford: OUP, 2005, 3rd ed) entries for “remedy”
and “reparation”.
2
See Addendum to the SRSG’s 2009 report to the Human Rights Council, forthcoming.
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The opportunity and ability to use effective judicial or non-judicial mechanisms, as
appropriate, to counteract or make good a situation where corporate activities are
alleged to have caused harm to the enjoyment of human rights by an individual or
group.
B.
The Existing Landscape
In addition to established national and regional judicial systems, there already exists a broad
array of non-judicial grievance mechanisms at the national, regional and international levels
that can address disputes between companies and individuals or groups in society. These
include:
 mechanisms at the company or project level to which impacted individuals and
groups (e.g., workers, communities etc.) can bring complaints;
 mechanisms linked to industry and multi-stakeholder initiatives (e.g., the Fair Labor
Association, Ethical Trading Initiative, Social Accountability International, International
Council of Toy Industries, Voluntary Principles on Security and Human Rights, Global
Framework Agreements);
 national mechanisms based in government (e.g., National Contact Points of OECD
Member States, consumer complaints bodies);
 national mechanisms that are state-supported but independent of government (e.g.,
ombudsman offices, labor dispute resolution offices, national human rights
institutions); and
 regional and international mechanisms (e.g., ILO-based mechanisms, the
Compliance Advisor/Ombudsman [CAO] of the World Bank Group).
The functions filled by non-judicial mechanisms can vary according to the wider context in
which they operate:
 in some instances, mechanisms have been developed to fill gaps where compliance
might better be enforced by national judicial or administrative mechanisms but these
are weak or absent (for instance the FLA, ETI, SAI etc.);
 in other instances they have developed to support compliance with standards that
may go beyond current legal requirements, whether in developed or developing
states (e.g., OECD NCPs, the CAO of the World Bank Group); and
 even where rule of law institutions are well-developed, non-judicial mechanisms often
operate as part of a deliberately tiered system designed to complement and/or
precede national judicial mechanisms (e.g., labor dispute resolution bodies, national
human rights institutions).
C.
Understanding Roles and Inter-relationships
Ideally, judicial and non-judicial mechanisms should form a mutually reinforcing web of
remedial options in cases of alleged corporate abuse. Yet the question remains as to what
the right relationship is between these two broad categories of mechanism in the field of
business and human rights. It is a field where there are wide variations between (and to
some extent within) states with regard to the existence, understanding and implementation of
legal requirements addressed to companies. It is a field where there are also wide variations
within (and to some extent between) states in the intellectual, experiential and ‘cultural’
affinities for judicial or non-judicial remedial approaches.
In understanding and assessing the current web of judicial and non-judicial grievance
mechanisms, it is imperative to consider:
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(a) the question of what the relationship between these mechanisms should be;
(b) the fact that in many situations there is advantage in having a range of remedial
options available.
The following section of this paper highlights some broad potential advantages and
disadvantages of judicial and non-judicial mechanisms. It is based on the assumption that
the mechanisms considered perform reasonably effectively. The barriers to their effective
functioning that frequently exist in practice are explored elsewhere in the work of the Special
Representative.
D.
Potential Advantages and Disadvantages of Judicial and Non-Judicial
Mechanisms
The following table attempts to identify some characteristics that are typically but not always
seen as advantages and disadvantages of judicial grievance mechanisms. It assumes that
there is a relevant cause of action.
(Please note that the following tables are not intended to be definitive, nor are pros and cons
in the same row intended as related ‘off-sets’.)
Pros of Judicial Mechanisms
Cons of Judicial Mechanisms
Finality of the outcome
Substantial, sometimes prohibitive, costs of
litigation, creating a potential inequality in
terms of legal representation
Enforceability of the outcome
Potential for extended delay in reaching an
outcome
High profile/public nature of the outcome,
which should contribute to: deterrence of
similar behavior; precedent-setting; and
systemic change
Formality and potentially daunting nature of
the proceedings
Scope for specific remedies, in particular,
financial compensation and punitive
measures or criminal sanctions
‘All-or-nothing’ outcome, which lacks the
flexibility or creativity to address ongoing
relationships
Capacity to deal with large-scale, complex
claims
Location of the forum and the relative
distance of the parties from it, especially in
relation to home versus host state courts
Can uphold key human rights goals
including equality, transparency,
accountability
Less likely to achieve other key human
rights goals such as participation and
empowerment
Turning to non-judicial grievance mechanisms, the following tables identify some relevant
advantages and disadvantages of two broad types within this category. The first table
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considers pros and cons of investigatory and quasi-adjudicative processes (that involve
reaching findings or conclusions, recommendations, e.g., as provided by some consumer
complaints offices). The second table considers pros and cons of dialogue-based
processes (such as mediation, conciliation, e.g., as provided by some national human rights
institutions). In practice, of course, various non-judicial mechanisms are designed to provide
both functions whether in sequence or in parallel (e.g., the CAO of the World Bank Group,
OECD NCPs).
Pros of Quasi-Adjudicative Mechanisms
Cons of Quasi-Adjudicative Mechanisms
Can provide a clear assessment of
compliance (or non-compliance) with
standards and, in some instances,
recommend or require remedial action
Can vary widely in procedural approach and
are therefore less well-known and
predictable in terms of process
Formal (and often public) nature of the
outcome, including in some instances the
power to withdraw funding or membership,
which should contribute to deterrence of
similar behavior in the future
Typically lack capacity for enforcement
(whether through the state or through the
mechanism’s own leverage)
Parties may be able to use findings from
the process as evidence in any
subsequent judicial proceedings
May not be able to compel the production of
evidence or the attendance of a party or
other individual
In some cases, can link investigation and
assessment to capacity-building
assistance to avoid recurrence
Typically engage representatives or proxies
for the impacted individual(s), potentially
reducing their participation and
empowerment
Pros of Dialogue-Based Mechanisms
Cons of Dialogue-Based Mechanisms
Less formal nature of the proceedings can
be less daunting than either judicial or
quasi-adjudicative processes
Can vary widely in procedural approach and
are therefore less well-known and
predictable in terms of process
Engagement with the process typically
Do not typically provide a formal or public
carries limited financial costs for the parties definition of ‘who was right and ‘who was
wrong’, nor a clear decision on whether
standards were breached
Typically faster in commencing and
completing process, providing more
immediate solutions and remedy
The outcomes may not be enforceable,
unless linked into state-based administrative
or judicial processes
Can help maintain, restore or build
relationships between parties
Require the willingness of both parties to
work towards a resolution
Can address specific concerns of the
Do not provide for punitive outcomes
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parties and identify tailored solutions and
forms of remedy
Can often go to the place of the dispute
rather than requiring the parties to travel to
a distant location
Do not set clear precedents with deterrent
effect for others
Can empower aggrieved parties by giving
them a participatory role in the process
and outcomes
Outcomes are not aggregated and
publicized in a manner that can leverage
systemic change
E.
Cross-cutting Factors
Drawing on these and any other pros and cons of judicial and non-judicial mechanisms, is it
feasible to identify some cross-cutting factors that may suggest when one or the other type of
mechanism is likely to be more appropriate? Of course, there should ideally be a range of
remedial options available in every case, with the aggrieved parties able to weigh the
benefits and costs of each. The purpose of this exercise is simply to identify what kinds of
factors might lead the parties to pursue one option rather than another in different situations
or in order to reach different goals.
An initial list of such factors could include (in no set order):

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

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F.
the scale of the alleged harm, which could relate to:
o its nature and gravity (especially if it amounts to a criminal offense);
o the number of affected individuals or communities; and
o the type of right affected;
the type of remedy sought by the claimant or victim, including the relevance of any
potential delay;
the potential costs involved in pursuing one approach over another;
the existence of serious inequalities between the parties;
the purpose(s) an aggrieved party is seeking to achieve, e.g., compensation, formal
(or public) conclusions, a tailored solution, or a change in behavior;
the importance to the parties of an ongoing relationship between them;
the relative accessibility of various mechanisms in the host and/or home state,
including issues of physical distance; and
the clarity and specificity with which a particular right or duty is defined in domestic
law and whether there is therefore a cause of action.
Summary
The foregoing was designed to promote and not to foreclose discussion. At a minimum,
however, it would suggest that judicial and non-judicial grievance mechanisms perform
different roles in the provision of remedy, yet roles that are overwhelmingly complementary in
nature and that rarely, if ever, represent a zero-sum calculation. Non-judicial mechanisms
can never replace the essential function of judicial processes in society, including in the
context of business-related disputes. Yet non-judicial grievance mechanisms also have a
unique role to play in providing remedy and may be preferred by the parties to some disputes
for a variety of reasons. The ideal scenario is one where victims of abuse and parties to a
dispute are able to make an informed choice as to which avenue to pursue. The primary
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concern must then be to ensure that both kinds of mechanism – judicial and non-judicial –
work as effectively and efficiently as possible so that they are as worthwhile in practice as
they are necessary in theory.
Prepared by Rachel Davis and Caroline Rees,
Corporate Social Responsibility Initiative, Harvard Kennedy School
March 2009