The institutional design of NJMs varies considerably in the manner they enable, empower or constrain worker and community struggles. Whereas the UNGPs effectiveness criteria, along with other key contributions to the NJM design literature, emphasise the importance of procedural fairness, across the cases we studied purely procedural efforts were insufficient to address the deep imbalances of power between business actors and aggrieved communities. However, in some cases, these imbalances were ameliorated by aspects of institutional design that the UNGPs effectiveness criteria leave implicit: the financial and human resources the NJM can mobilise, the authority it can command and the extent to which its design enhances its capacity to exercise leverage in support of human rights redress. Even where the NJM’s design provides leverage, NJM staff frequently hesitate to flex institutional muscle for fear of jeopardising crucial resources and relationships. As such, the usefulness of transnational NJMs’ interventions often depends crucially also on factors beyond institutional design, namely the extent to which aggrieved communities are able to draw on and effectively deploy other forms of leverage and influence.

When NJMs fail to deliver remedy, criticism is often first levelled against their institutional design: the policies, processes and powers that characterise their operations. Chapter 2 interrogates literatures that conceptualise and critique effective design, primarily theories of non-judicial governance and regulation within the business and human rights scholarship focused on NJMs and approaches captured under the term ‘new governance’. Four elements of institutional design receive particular emphasis in these literatures: efforts to establish accessible and fair non-judicial procedures, processes that support socialisation and learning, strong institutional capacity and resourcing and provisions to help motivate businesses to engage with non-judicial redress processes. This scholarship, though, often overlooks important areas of ambiguity, firstly, whether and how design can encompass and respond to the divergent purposes and aims that animate grievance claims and, secondly, implications for institutional design that arise from recognising the embedding of regulatory and redress processes in broader, and highly unequal, social relations.