2CRM945

INTERNATIONAL CRIMINAL LAW

CE-III: Research Paper

A Comparative Study of the Role of Arbitration in

Resolving International Criminal Disputes

Submitted To: Submitted By:

Dr. Anviksha Pachori Aditi Sharma
Assistant Professor, ILNU 20BBL068
20BBL068 2CRM945 CE-III Research Paper

Index
Abstract ...................................................................................................................................... 3
Introduction ................................................................................................................................ 3
Literature Review ....................................................................................................................... 4
Arbitration as a Mechanism for Resolving Disputes ................................................................. 5
Comparative Advantages of Arbitration .................................................................................... 5
Challenges and Criticisms .......................................................................................................... 6
Case Study: Rana Plaza Accord Arbitration .............................................................................. 6
Background and Context ........................................................................................................ 6
Arbitration as a Resolution Mechanism ................................................................................. 7
Challenges and Outcomes ...................................................................................................... 7
Implications for International Criminal Disputes ................................................................... 7
Future Prospects of Arbitration in Criminal Disputes................................................................ 8
1. Hybrid Models: Integrating Arbitration into Criminal Tribunals ................................... 8
2. Establishing Regional Arbitration Centers...................................................................... 8
3. Corporate Accountability Mechanisms ........................................................................... 8
Conclusion ................................................................................................................................. 9

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20BBL068 2CRM945 CE-III Research Paper
A Comparative Study of the Role of Arbitration in Resolving International
Criminal Disputes

suggests an exploration of arbitration's potential as an alternative or complementary mechanism

to traditional criminal justice systems in addressing international crimes like genocide, war
crimes, and crimes against humanity. It implies an analysis of how arbitration compares to
established systems like the ICC in terms of efficiency, neutrality, and effectiveness. The study
likely investigates arbitration’s adaptability to criminal contexts, evaluates its strengths and
limitations, and explores its role in achieving justice, accountability, and reparations,
particularly through case studies or real-world applications.

Keywords: Arbitration, Disputes, International, Criminal, Justice, Resolution, Accountability,

Tribunals, Reparations, Mechanism

Abstract
This paper explores the emerging role of arbitration as an alternative mechanism for resolving
international criminal disputes. While arbitration has historically been associated with civil and
commercial matters, its application in criminal disputes raises intriguing possibilities. The study
critically examines how arbitration could supplement international criminal tribunals, enhance
access to justice, and foster reconciliation. A literature review and case study approach are
utilized to evaluate its potential, challenges, and future applicability.

Introduction
The intricate field of international criminal law addresses grave offenses such as genocide,
crimes against humanity, and war crimes, often requiring complex legal frameworks for justice
and accountability. Traditional judicial mechanisms like the International Criminal Court (ICC)
and ad hoc tribunals have played a pivotal role but face significant criticisms regarding delays,
high costs, and political interference. Arbitration, traditionally confined to civil and commercial
disputes, has gained attention for its efficiency, neutrality, and adaptability, presenting a
potential alternative or complementary mechanism for resolving international criminal
disputes.

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This section introduces arbitration's evolution and its potential applicability to criminal matters,
including disputes involving state accountability, corporate complicity in crimes, and victim
reparations. It posits that arbitration, with its inherent flexibility, could address gaps in the
international criminal justice system by providing specialized forums for resolving certain
disputes more effectively.

Literature Review

Historically, international criminal justice has been dominated by tribunals like the
International Criminal Court (ICC) and the International Criminal Tribunals for the former
Yugoslavia and Rwanda. These tribunals focus on adjudicating crimes against humanity, war
crimes, and genocide. While effective, these courts face criticisms such as delays, exorbitant
costs, and political influences.

Conversely, arbitration has evolved as a trusted mechanism for international commercial

disputes, offering speed, confidentiality, and neutrality. Scholarly discourse highlights the
challenges of adapting arbitration to criminal matters due to procedural and substantive
differences. For instance, procedural fairness and public accountability remain central to
criminal law but are less emphasized in arbitration frameworks.12

Some literature posits that arbitration could serve as a complementary tool, particularly for
disputes related to reparations, victim compensation, or crimes of transnational corporations
operating in conflict zones. Examples include the Bangladesh Accord Arbitration following the
Rana Plaza collapse, which indirectly addressed corporate accountability in international
criminal contexts. 3

1
(Gojkovic et al., An unlikely tandem of criminal investigations and arbitral proceedings: A case study of the ina
- mol oil & gas proceedings 2017)

2
(Vanda Kopic (Assistant Editor for Europe) et al., Criminal law and arbitration archives 2024)
3
Hof, Jacomijn & Holland, Romilly. (2019). What makes for Effective Arbitration? A Case Study of the London
Court of International Arbitration Rules. 10.1163/9789004407411_004.

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20BBL068 2CRM945 CE-III Research Paper
Arbitration as a Mechanism for Resolving Disputes

Arbitration, a private dispute resolution mechanism, has been a cornerstone of international

commerce due to its efficiency, confidentiality, and neutrality. Its core principle is the
consensual agreement of parties to resolve disputes through arbitrators rather than courts.

When applied to international criminal contexts, arbitration could handle issues tangentially
related to criminal justice, such as disputes over reparations or claims against states and
corporations accused of complicity in crimes. For instance, arbitration may be effective in
mediating disputes over compensation for victims of war crimes or crimes perpetrated by
transnational corporations in conflict zones. This section outlines arbitration's procedural
adaptability, which could allow for a blend of criminal and civil law principles to address
specific aspects of criminal disputes.

Comparative Advantages of Arbitration

Arbitration offers several advantages over traditional judicial mechanisms in international

criminal disputes:

 Neutrality and Impartiality: Arbitrators are selected based on mutual agreement,

ensuring neutrality, particularly in politically sensitive cases. This reduces the
perception of bias often associated with international tribunals.
 Cost Efficiency: International criminal tribunals like the ICC are often criticized for
their prohibitive costs. Arbitration provides a more cost-effective solution by
streamlining procedures.
 Flexibility: Arbitration proceedings can be tailored to suit the dispute's unique nature,
incorporating cultural or contextual considerations, which can enhance accessibility for
marginalized groups.
 Expeditious Process: Unlike prolonged trials in criminal courts, arbitration ensures
timely resolution, a critical factor for both victims and accused parties.

While arbitration may not entirely replace judicial mechanisms for adjudicating grave crimes,
its integration could address specific shortcomings of existing systems, particularly in post-
conflict scenarios or corporate accountability cases.

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Challenges and Criticisms

Despite its advantages, arbitration faces several challenges in international criminal disputes:

 Private Nature: Arbitration is inherently private, which conflicts with the transparency
and public accountability integral to criminal proceedings.
 Enforceability Issues: The enforcement of arbitral awards in criminal contexts remains
contentious. Instruments like the New York Convention were not designed for criminal
cases, creating gaps in enforceability.
 Absence of Binding Precedents: Criminal law relies heavily on precedents to ensure
consistency and predictability, which arbitration lacks.
 Legitimacy and Public Perception: Arbitration may face legitimacy issues in
addressing crimes against humanity or war crimes due to its association with private
dispute resolution rather than public justice.

These challenges necessitate a careful evaluation of arbitration’s scope and the development of
hybrid frameworks that align with international criminal law principles.

Case Study: Rana Plaza Accord Arbitration

Background and Context

The Rana Plaza disaster of 2013 remains one of the deadliest industrial accidents in history,
highlighting the dangerous working conditions prevalent in the garment industry. Located in
Dhaka, Bangladesh, Rana Plaza housed multiple garment factories producing clothing for
prominent global brands. On April 24, 2013, the building collapsed, killing over 1,100 workers
and injuring thousands. Investigations revealed negligence, as cracks in the structure were
reported the day before, yet factory operations continued under pressure from employers. The
tragedy prompted widespread condemnation and demands for justice, focusing on the
accountability of multinational corporations and the compensation owed to victims and their
families.

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Arbitration as a Resolution Mechanism

In the aftermath, arbitration was employed as a key mechanism to address disputes related to
corporate accountability and victim compensation. The arbitration process was initiated under
the legally non-binding Accord on Fire and Building Safety in Bangladesh, signed by over 200
global brands, unions, and non-governmental organizations. This agreement aimed to improve
safety standards and provided a framework for resolving disputes between signatory brands and
their suppliers. Arbitration facilitated negotiations between stakeholders, emphasizing
expedited reparations and conflict resolution. It served as an effective alternative to court
litigation, which could have been protracted and resource-intensive.

Challenges and Outcomes

While arbitration ensured quicker resolutions, it was not free from challenges. Critics argued
that the process lacked full transparency and accountability due to its private nature. Some
stakeholders resisted participation, and concerns about the adequacy of compensation were
raised. Despite these hurdles, the arbitration outcomes led to the establishment of a victim
compensation fund, which disbursed financial aid to affected workers and their families. The
process also pushed global brands to commit to long-term improvements in factory safety
standards, marking a critical shift in corporate social responsibility.

Implications for International Criminal Disputes

The Rana Plaza case exemplifies how arbitration can address issues of transnational corporate
accountability and victim reparations, even in contexts involving criminal negligence. By
enabling dialogue and fostering collaboration among diverse parties, arbitration emerged as a
practical solution for disputes with cross-border implications. However, the case also
underscores the need for stronger enforcement mechanisms and greater transparency to ensure
fairness. The Rana Plaza arbitration highlights the potential of alternative dispute resolution
methods in addressing certain aspects of international criminal disputes, offering lessons for
integrating arbitration into broader frameworks of justice and accountability.

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Future Prospects of Arbitration in Criminal Disputes

Looking forward, arbitration could play a transformative role in international criminal justice
through the following strategies:

1. Hybrid Models: Integrating Arbitration into Criminal Tribunals

Arbitration could be effectively incorporated into existing international criminal
tribunals, such as the International Criminal Court (ICC) or ad hoc tribunals, to focus
on specific aspects of cases like reparations and victim compensation. Hybrid models
could utilize arbitration's procedural flexibility while maintaining the tribunals' legal
rigor. For instance, specialized arbitral panels could handle disputes related to financial
restitution for victims, freeing up tribunal resources to focus on the adjudication of
criminal responsibility. Such integration would offer an efficient and victim-centric
approach, ensuring that reparative justice remains a priority in international criminal
proceedings without compromising accountability or due process.

2. Establishing Regional Arbitration Centers

The creation of regional arbitration centers dedicated to international criminal disputes
could enhance accessibility to justice, particularly in areas with limited access to formal
international tribunals. These centers would cater to local populations, allowing for
culturally sensitive arbitration mechanisms that address the nuances of regional
conflicts and crimes. For example, centers in Africa or Southeast Asia could specialize
in handling disputes related to war crimes or crimes against humanity within those
regions. This approach not only decentralizes the international justice system but also
fosters greater trust and participation from affected communities. Such regional hubs
could work in tandem with global bodies, creating a layered system of accountability.

3. Corporate Accountability Mechanisms

As global corporations increasingly come under scrutiny for complicity in international
crimes, arbitration frameworks could be expanded to address these issues. Currently,
arbitration in corporate disputes focuses on civil liability, but future developments could
bridge the gap between civil and criminal accountability. For instance, corporations
implicated in crimes like forced labor, environmental destruction, or funding armed
conflicts could be subjected to arbitration processes to determine reparations for
affected communities. This could be particularly valuable in holding multinational
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corporations accountable when state-level enforcement is weak or non-existent. Such
frameworks would need to balance corporate confidentiality with public interest,
ensuring transparency and fairness.

Future developments in arbitration must reconcile its procedural adaptability with the ethical
and legal demands of international criminal law. For arbitration to gain legitimacy in this field,
it must align with principles such as fairness, transparency, and impartiality. Innovations like
public oversight mechanisms, independent arbitral panels, and enforceable outcomes could
strengthen arbitration's credibility. By combining arbitration's efficiency with the moral and
legal imperatives of international criminal justice, robust systems can be developed to address
complex disputes effectively. The future of arbitration lies in its ability to complement, rather
than replace, existing frameworks, fostering a more comprehensive and inclusive approach to
international justice.

Conclusion

Arbitration offers promising avenues for resolving specific international criminal disputes,
particularly those involving reparations or corporate complicity. However, its adoption must be
cautiously balanced with the need for public accountability and fairness inherent in criminal
justice. As international law evolves, arbitration could become an indispensable part of a
diversified toolkit for global dispute resolution.

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