1) Extrajudicial Process
The OECD Guide says that “the National Contact Points to the OECD Guidelines for MNEs are a State-based nonjudicial mechanism through which issues can be raised about implementation of the OECD Guidelines for MNEs in specific instances” and that the “NCP are legitimate remediation mechanisms through which grievances concerning enterprise-related adverse impacts can be raised and remedy can be sought”.
Therefore, we can conclude that a Specific Instance is an “extrajudicial process”. This affirmation is so true that my Initial Submission received a “procedural number”: “19971.100637/2020-06”.
However, even if there are procedures for conducting a Specific Instance, such as those described in the NCP Brazil Manual, as it is an "extrajudicial process", necessarily, some "principles" must be observed for serving as foundations for all and any process, whether judicial or non-judicial.
2) Adversarial and the Full Defense Principles
Among these procedural principles, it is necessary to highlight the “adversarial principle” and the “principle of full defense”, which are guaranteed in the Brazilian “higher law”: the Federal Constitution of 1988.
The adversarial principle is derived from a Latin phrase, audi alteram partem (or audiatur et altera pars), which means listening to the other side or letting the other side be heard as well.
And that is precisely what this principle guarantees: that the two Parties to a process are heard and have the same opportunities, that is, this principle must be equally applicable to the Submitter and the Respondent, which is why both must be informed of the allegations in order to be able to refute them if they wish to do so.
The principle of full defense is correlated with the adversarial principle, and it is the duty of the State, in this case, the NCP Brazil, to provide both the Submitter and the Respondent with the possibility of making the most complete defense regarding the allegations of each one of the Parties. This means that the full defense ensures that the parties have the necessary means to express themselves and even produce new proofs.
In this context, I highlight the instruments that guarantee the adversarial principle and the full defense principle, an essential right of the litigants. It is the reply and the rejoinder that fit into a procedural logic:
“In the case of NCP Brazil, the process begins with the ‘Initial Submission’ containing non-compliance with the OECD Guidelines to the disadvantage of a multinational company. Next, the Respondent exercises its right to make a ‘manifestation” to the Submitter's arguments. After that, the NCP Brazil should make room for the manifestation (reply) of the Submitter, in which they will express his or her views on the Respondent's arguments and may even produce new proofs that may be necessary. Finally, the NCP Brazil will make room for a new manifestation (rejoinder) by the Respondent so that the company can manifest itself on the Submitter's new manifestation, and may also produce new proofs”.
Unlike what happens with the reply, the Brazilian legal system does not expressly provide for the rejoinder. However, in the event of new allegations (and new proofs) being presented by the Submitter at the time of the reply, as a way of complying with the adversarial principle and the full defense principle, it will be appropriate for the Respondent to manifest itself again in the Specific Instance. Thus, although there is no legal provision, the new manifestation of the Respondent is conventionally called a rejoinder.
Therefore, the adversarial and the full defense principle derive from an even more basic principle, which is the "equality of arms" (procedural isonomy): the Submitter and the Respondent are equidistant, that is, they are on an equal footing: everything that one Party affirms the other can refute.
Finally, although conceptually different, the “adversarial principle” and the “principle of full defense” complement each other, contributing to the emergence of the “truth of the facts”. This “truth” can only appear when the “set of proofs” is sufficiently capable of “substantiating” the arguments of each of the Parties.
3) Proofs
The “production of proofs” is one of the aspects of the adversarial principle, and its purpose is to demonstrate whether the arguments presented are “real facts” or just “narratives”, that is, “arguments not supported by proofs”.
Proofs play a fundamental role in any process, including a Specific Instance. And this is because, through proofs, a “judgment of certainty” can be issued on the allegations of the Parties. So, in the legal sense, “the proof consists in the demonstration of the truth of the facts discussed in the process”.
Furthermore, all proofs have as characteristics the object (the facts they wish to prove), the purpose (the conviction about a certain allegation), the addressee (in this case, the NCP Brazil, responsible for preparing the Final Statement), and the means (the species of proofs to prove the facts, such as documentary, testimonial, expert reports, etc.).
Therefore, the "value of the proof " is an essential element for the clarification of the facts alleged in the Specific Instance, and its purpose is: to highlight the controversy of the circumstances presented by the Parties. Consequently, the “allegation of facts” and the “production of proofs” will be up to the Submitter and the Respondent. This means that “the burden of proof is preceded by the burden of allegation”.
Finally, due to the importance of the proofs for the process, it is even said that the proofs are the "heart" of the process because it is through them that the destiny of the procedural legal relationship will be defined, in this case, the "Final Statement”.
We can conclude then that against facts there are many arguments! Despite the vestiges, indications, and evidence, the facts can and must be contested to meet the adversarial and the full defense principles. However, against facts that have rich, abundant, and robust supporting documentation, there will be no arguments left! That's because duly proven facts become "irrefutable facts".
4) Irrefutable
The word “irrefutable” is an adjective that means “something that has already been proven and there is no way to prove otherwise”, that is, “something that cannot be disputed”.
The synonymous for the word irrefutable are: accomplished, certain, inarguable, incontestable, incontrovertible, indisputable, indubitable, irrefragable, positive, sure, unanswerable, unarguable, unchallengeable, undeniable, and unquestionable.
5) Causal Link
The “causal link” (or causal relationship) is the link that links the conduct of an agent, whether actions or omissions, with the result of the damage caused, thus enabling the identification of responsibilities through a line of logical and coherent reasoning, supported by duly proven facts that are sufficiently capable of “reconstructing the events” which, invariably, reside in the past.
Therefore, the Specific Instance is the way in which the Submitter reconstructs the events, presenting (and proving) the Respondent's responsibility for the damages and losses suffered.
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