Nonjudicial business regulation and community access to remedy

Abstract

Redress for communities harmed by transnational business activity remains elusive. This paper examines community efforts to access redress for human rights-related harms via recourse to transnational nonjudicial mechanisms (NJMs) – a prevalent but widely debated instrument of transnational business regulation. Drawing together insights from theoretical debates surrounding nonjudicial regulation and evidence from a major empirical study of human rights redress claims in Indonesia and India, the paper explores the conditions under which NJMs can support community access to remedy. Three conditions are shown to be central in enabling some degree of NJM effectiveness: the institutional design of regulatory strategies, the institutional empowerment of regulatory institutions, and social empowerment of affected communities and their supporters. While all three conditions are required in some measure to underpin effective NJM interventions, these conditions can be combined in varying ways in different contexts to underpin either top–down or bottom–up pathways to redress. The former derives its primary influence from institutional authority and capacity, while the latter relies more heavily on diffuse societal leverage in support of community claims. These findings have significant implications for theoretical debates about the capacity and limits of nonjudicial regulatory approaches to support human rights redress within decentered contexts of transnational regulation where both regulatory power and agency are widely diffused.