Current Legal Issues Seminars 2019

This paper draws on data collected from the ASX 50 with a focus on policy commitment to human rights. As the UNGP makes clear a policy commitment is the most basic form of recognition that corporations should afford to human rights. It is particularly important to look at this now as Australian corporations prepare to submit their first reports for the rather less ambitious requirements of the Modern Slavery Act 2018. The data reveals that there is generally a low compliance with policy commitment and that several factors revealed by the data can be identified as key to predicting whether compliance will occur or not. 

The ASX is an interesting exchange to study because it contains listed companies in key areas for human rights; agriculture and extractive industries. However it also reflects all 11 sectors of the Global Industry Classification Standard. Australia is a G20 economy with 28 years of continuous economic growth. We might expect rather stronger support for human rights respect in line with Australia’s position on other ESG standards. The paper suggests reasons why, culturally, following Charlesworth’s ‘Australian reluctance about rights’ this is not the case.

The rise of investor-State dispute settlement is one of the most prominent developments in public international law in recent decades. It facilitated the depoliticisation of investment disputes by taking them out of the political arena of diplomatic protection claims, and enabled such disputes to be brought before independent and impartial ad hoc arbitral tribunals, which were constituted under bilateral and multilateral investment treaties.

This development has also been controversial, as it has seen such tribunals pass judgment on the regulatory activities of sovereign States in areas such as environmental protection, the protection of public health, and the protection of labour rights. Concerns have been raised by various stakeholders about (for instance) inconsistent decisions and an alleged lack of coherence in legal interpretation by such tribunals, and the appointment to such tribunals of arbitrators who can also act as counsel in other investment disputes. Against this background, States have charged UNCITRAL’s Working Group III with considering possibilities for the reform of investor-State dispute settlement, which is a once-in-a-generation opportunity. This lecture will consider whether reform is needed, and will identify the most likely possibilities for such reform.