The Hague Rules on Third-Party Joinder: A Revised Framework

Abstract

This paper critically assesses the Hague Rules’ stance on third-party joinder. Third-party joinder is an important feature in business human rights disputes. It is a mechanism that victims of human rights abuses can use to bring claims against corporate defendants where the victims do not otherwise have an underlying agreement on which to base their claim. Keeping in line with traditional conceptions of commercial arbitration, the Hague Rules are grounded in party consent to arbitrate. Conceptions of consent therefore have an outsized impact on the universe of parties who can bring actions against corporations before arbitral tribunals for human rights abuses. The main objective of this paper is to offer an alternative framework of third-party joinder and consent to achieve a better balance between the interests of claimants alleging human rights abuses and corporate defendants. Part I traces the rise of arbitral tribunals as fora for business human rights disputes. Part II outlines the procedural shortcomings of third-party joinder in business human rights cases before arbitral tribunals under the Hague Rules. Part III advocates for a new framework to guide arbitral tribunals when assessing whether to allow requests for third-party joinder.