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Kathleen Claussen

Why have arbitral rules designed for use in international labour dispute resolution proceedings not yet materialized? International labour arbitration experts at a 2003 symposium in The Hague were optimistic about the creation of a set of arbitral rules that would include provisions with special relevance to labour disputes, like other specialized arbitration rules, addressing issues such as the participation of multiple parties or the transparency of the proceedings. As cross-border work increases, the need for such rules becomes more pressing because, in the absence of a global enforcement mechanism for labour standards beyond what is foreseen in the Constitution of the International Labour Organization (ILO), the potential for conflict among jurisdictional labour standards and the practices of individual actors also increases. The labour complaints process under the ILO Constitution has rarely been invoked; a more promising potential tool to promote labour arbitration may be the ‘social clauses’ found in multilateral and bilateral trade and investment agreements. While the investment community, with heavy clout in political circles, has succeeded in establishing a regime for international investment, the labour community, while making considerable progress in recent years, has not yet achieved the same stand-alone enforcement strength in the dispute resolution sphere for cross-border labour disputes. To the extent these treaties retain some flexibility in the subject matter encompassed by the dispute resolution mechanism, they may hold the potential to provide a forum for the resolution of grievances arising in labour contexts.