Legal waivers in settlement agreements: Implications on access to remedies in business and human rights

Abstract Legal waivers in the business and human rights context are an agreement corporations use to provide compensation to victims in exchange for waiving their right to file future claims in a court of law in corporate human rights abuses. Corporations use legal waivers to further secure legal immunity from potential future claims for adverse human rights impact. In contrast, right-holders accept legal waivers as they provide quick resolution of grievances, mainly in the form of monetary compensation. This article investigates the inequality of bargaining power under which legal waivers operate. It advances the central claim that the use of legal waivers in private remedial processes reflects corporate attempts to renegotiate human rights standards by exercising authority. I use the Porgera case study to shed light on how power inequalities between corporations and right-holders distort the nature of business actors’ governance authority in business and human rights. I further argue that legal waivers strengthen the power of corporations while simultaneously not serving the public interest that corporations claim to uphold in facilitating a private remedial process for right-holders. I conclude that the power inequalities exacerbate the “power” element of authority without affecting the legitimacy of corporations but distorting the nature of their governance authority.