IBA initiatives and activities - BASESwiki.org - A global ADR platform - Scott Appleton

An innovative new venture supported by the IBA aims to provide essential knowledge in the resolution of disputes between business and society.

The launch of the IBA-supported BASESwiki.org website will help to fill the clear information gap surrounding the non-judicial resolution of disputes between business and society, believes John Sherman, Co-Chair of the IBA’s Corporate Social Responsibility Committee (CSRC), a Senior Fellow at Harvard University’s John F Kennedy School of Government and one of the project’s development team.

‘This is not simply a static website maintained on an ad hoc basis. We have used the “wiki” technology specifically because it offers an interactive platform that can benefit companies and the communities on which they have an impact. The aim is not merely to disseminate information about alternative dispute resolution (ADR) resources to those who need it but to draw also on the experiences and expertise of the international ADR community, including business, society and providers of ADR services.’

An acronym for Business And Society Explore Solutions, BASES is a collaboration between the IBA and the Corporate Social Responsibility Institute (CSRI) at Harvard University’s John F Kennedy School of Government, supported by the World Bank Group and the JAMS (Judicial Arbitration and Mediation Services) Foundation.

Among the IBA committees involved with the project alongside the CSRC include the Human Rights, Mediation, Litigation, Arbitration, Pro Bono and Access to Justice, Consumer Litigation and Negligence and Damages Committees and the Corporate Counsel Forum.

The development of the website was driven by the findings of a 2008 report on business and human rights by Harvard Kennedy School Professor John Ruggie, also the UN Secretary-General’s Special Representative for Business and Human Rights. ‘It is critically important for those who can benefit from ADR tools to know how to access them, how they function, what types are most effective in particular circumstances – mediation, conciliation, arbitration, etc – and their outcomes’, Sherman says.

Knowledge gaps

Sherman, formerly Deputy General Counsel at UK-based National Grid, worked alongside the Director of the Governance and Accountability Program at the CSRI, Caroline Rees (who is on secondment from the UK Foreign Office), in helping to support Professor Ruggie’s work and applying the outcomes in a practical commercial setting.

Non-judicial dispute resolution and a reduction in the impact of disputes are important aspects of current UN emphasis, they say, with Professor Ruggie’s research focused on three core areas: the state’s duty to protect citizens from human rights infringements by companies’ operations; the business responsibility to respect human rights, by conducting due diligence to avoid such infringements; and the ability of those affected by companies’ activities to access remedy for human rights infringements against them – it is in this latter respect that the BASESwiki project is derived.

In formulating the research, what quickly became apparent was that despite a growing number of non-judicial methods available to companies and affected parties to address human rights disputes – and through which a more constructive dialogue could often be reached – many who might most benefit from them were not, however, aware of ADR options, says Rees.

‘There were evident knowledge gaps in both the subject matter in a corporate context as well as the means and methods to help resolve issues. There was a sense that many companies, for example, were “reinventing the same wheel” – they were encountering similar issues and entering into similar processes but there was no information on how matters had previously been resolved, or of prior successes.’

Momentum

Steven Lenahan, a member of the BASESwiki steering group, and formerly responsible for external affairs and corporate social responsibility with a large international mining group, explains how companies’ own experiences in overcoming the challenges that surround human rights-related disputes helped inform the background project research as well as, ultimately, the focus and functionality of the BASESwiki.

He became involved in the project through Caroline Rees, having attended a number of workshops at the Harvard CSRI focusing on corporate activity and human rights accountability and mechanisms for resolving complaints and disputes. ‘In my previous role we had confronted a number of human rights issues in various countries and were ourselves engaged in an internal debate about, among other things, how to deal effectively, transparently and sustainably with allegations of human rights violations especially in areas of weak governance’, he says.

The mining industry, he notes, is potentially an important user group of the new site, frequently facing issues arising from mining activity and its impact on host communities, and across which a wide variety of strategies may be used in helping to resolve disputes.

‘In our case, we took the view that our commercial success depended, at the outset, on sustainable community relationships. But while we had devoted considerable resources to managing these relationships constructively – and often innovatively – we still had much to learn, as did the community-based and non-governmental organisations with whom we dealt.’

In several instances, he says, the company was engaged with local communities and their representatives on how best to deal with allegations of human rights violations in circumstances where formal mechanisms did not exist or were simply not trusted by civil society. ‘The CSRI project seemed to us to be a very good opportunity to test some of this practical learning with the academic and advocacy work which was being done at the time.’

‘No one person or organisation could know where all the relevant information was’

Caroline Rees
Corporate Social Responsibility Institute

‘Wiki’ platform

The outcome and aim of the BASESwiki are therefore to build on disparate expertise and to contrast and compare the outcomes achieved through different peoples’ experiences, in different business sectors and locations, and through alternative processes. ‘The issue was what type of vehicle would help to fill and address the gaps that we had identified. From our own experiences, and having liaised with the IBA, it was evident that no one person or organisation could know where all the relevant information was’, says Rees.

The idea of using ‘wiki’ technology as a platform and the success and expansion of sites such as Wikipedia seemed to offer the potential to involve different albeit equally interested groups. Users would also be able to engage with the subject matter and over time a wiki platform would become a fluid entity in its own right.

The website therefore serves as an information and learning resource for those interested in resolving disputes between companies and society outside a courtroom, wherever they may be, says Rees, while offering a global perspective and a searchable database on the types of resources available, who can provide them and the resolutions achieved. ‘The aim of the site is to increase the wider understanding of how the various mechanisms are viewed by key stakeholder groups, what patterns are emerging in settled disputes, and how these might impact the development of policies, procedures and standards in order to prevent future disputes’, adds Sherman.

The BASESwiki is supported financially by the Compliance Advisor Ombudsman of the World Bank as well as entities such as the JAMS Foundation, which are interested in ADR and resolving social conflicts.

Site users can already present their own information and experiences, and edit materials. For the time being, however, the Harvard group will maintain an administrative role as will the ambitious London-based IBA team through project lawyer Gonzalo Guzmán and Eleanor Farrow, a project administrator now working full time assisting contributors and promoting participation among IBA members. ‘The project is an innovative and hugely important one, allowing for more immediate and direct interaction and participation from contributors around the world. The intention is to cover as broad a range of mechanisms as possible and more than 120 jurisdictions by the end of 2009’, says Guzmán.

‘The intention is to cover more than 120 jurisdictions by the end of 2009’

Gonzalo Guzmán

Constituency

The website will become self-supporting in time, but currently work remains to be done to populate it with information and resources and to expand the site user base, says Rees.

‘We are now embarking on an “outreach” programme to attract contributors and contacts and the IBA clearly offers exciting potential in this respect, to galvanise wider interest and involvement. What is important is to access lawyers and ADR professionals who can offer their local context, but also companies and others who can offer their internal expertise and experiences.’

The site is already drawing on the help of international interest and non-governmental groups across India, Japan, Korea, South Africa and the United Kingdom. Information is currently accessible in English, French and Spanish, with Arabic, Chinese and Russian language portals to follow. ‘The BASESwiki is in effect a “start-up”. The first stage of the project is almost now complete – to formulate the strategy, develop the technology and establish the website – now the effort is towards populating it, to build support and momentum to help it become self-sustaining’, says Sherman.

Even for those deeply involved in the issues the BASESwiki seeks to address, the constant challenge is to keep abreast of developments, understand new issues and to continue to develop skills, says Lenahan.

‘I think that the site through, for example, its “Grievance Mechanisms” tool is, in itself, an invaluable, practical output from the research project process; it is not a position paper but an effective practical instrument. This alone sets it apart from much of the work which has emerged from the non-judicial mechanisms debate, which has been largely analytical and descriptive, rather than instructive.’

The new challenge, say the project team, is in part an advocacy one: how to get the CSRI guidelines, and other variations, into the everyday language of CSR management and, in so doing, encourage them to improve. The inclusive and reflective nature of the BASESwiki, they believe, will add extra momentum to ensure that business continues to take into account its impact on the wider society.

Develop BASESwiki

IBA members are invited to help develop BASESwiki by creating a ‘Country Context’ outline of alternative dispute resolution (ADR) mechanisms in their jurisdiction, contributing research papers, descriptions of existing mechanisms or reporting the outcome of a mechanism. They can also register as an expert in non-judicial mechanisms, ADR, human rights and the environment.

Please add information on non-judicial mechanisms in your jurisdiction or company at www.baseswiki.org or email baseswiki@int-bar.org for further details.

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Scott Appleton is an editor and writer specialising in international legal business. He can be contacted by e-mail at scottappleton@hotmail.com