Considerations on the "draft" of the Final Statement

In the month of September 2022, NCP Brazil sent me the "draft" of the Final Declaration of this Specific Instance.

I should make suggestions for "changes" to the content of this draft with the respective "justifications".

In my understanding, the rapporteur of a Specific Instance is the main observer of everything that has been alleged (and proven) by the Parties and, therefore, must prepare the Final Statement honestly, being careful to reinforce the separation between opinion and facts, and giving strict attention to the truth to bring credibility to their work and present a well-written text, as this will be essential for the receiver to make their own reflections.

Likewise, the Final Statement should describe the facts as they are and as objectively and impartially as possible. And that's because the main purpose of the Final Statement is to express the exact reflection of reality, rejecting any narrative component that is not the complete description of the facts. Therefore, any change could distort the reality of how the facts happened.

Furthermore, as we saw earlier, a Specific Instance is a “non-judicial process” and, for this reason, there is no “condemnatory sentence”, as there is in the labor, civil, or criminal spheres.

However, by way of elucidation and analogy with the Final Statement, we will need to observe the “legal standard” of a judgment in the judicial sphere:

Report: It will contain the names of the Parties, the identification of the case, with the totality of the request and the contestations, and the record of the main occurrences that occurred in the course of the process;

Substantiation: It concerns the questions of fact and of law that were analyzed by the Judge when explaining the reasons why he formed his conviction about how the facts occurred (based on the allegations and proofs) and what legal consequences are applicable. This is the most extensive chapter of the sentence, since it is here that all the elements that must be taken into account (onus, proofs, presumptions, allegations of the Parties, legal provisions, etc.) are concentrated. It is here that the questions (controversial points) of fact and law must be resolved, exposing the reasons that guide the correlated solution. There is a real argumentative burden on the judge, who cannot fail to examine all the elements that are presented to him, which will establish parameters that should guide the task of presenting the sentence;

Device: It is the chapter of the sentence in which the result of the judgment is established: deciding or not the merits.

Therefore, the NCP Brazil, when completing the preparation of the Final Statement of this Specific Instance, should pay particular attention to the part that concerns the "report" and the "substantiation" so that this document is a mirror of this case and can reflect completely, everything that was manifested (and proved) by the Parties.

Although the NCP Brazil does not make a “judgment” on the conduct of companies in relation to the OECD Guidelines (as provided in “item 7.5.1”, of the NCP Brazil Manual), OECD Watch “encourages” NCPs to “include” in its Final Statement “a determination as to whether or not the company has met the expectations of the OECD Guidelines”.

1) STRUCTURE: 

With all due respect, it is essential to make a constructive criticism of the “structure” of the draft of the Final Statement of this Specific Instance.

Note that the document has “130” paragraphs, with 57 paragraphs (almost 50%) intended for the bureaucratic procedures of NCP Brazil.

On the other hand, the Final Statement reporting the non-compliance with the OECD Guidelines of the Brazilian multinational "Vale S/A" (Specific Instance nº 02/2020 - Doc. 01) had a very different structure that included the Parties' allegations, the additional procedures made by the NCP Brazil, the counter-allegations, and even the new manifestations of the Submitter and the Respondent, all of which were described in an organized and easy-to-understand manner.

2) DECONTEXTUALIZATION 

In the case of this Specific Instance, the result of the current structure and the way in which the draft of the Final Statement was written ended up decontextualizing the “chronology of the facts” presented by me in this Specific Instance through abundant, rich, and robust "supporting documentation" that , undeniably, were sufficiently capable of “reconstructing the events”, involving the “actions” and “omissions” of Eni’s Brazilian subsidiary and of Eni itself due to my “unfair” dismissal, which indisputably was in “retaliation”; and the lack of "whistleblower protection" (as determined by Eni’s Code of Ethics) as well as Eni's strategy to conduct the "Flinto case", which was also unquestionably used in this Specific Instance: "systemic imposition of retaliation with attacks on my honor and reputation, and instrumentally engineered victimization”.

Through the affirmation in the previous paragraph, Eni needs to present to the NCP Brazil a justification for the following question: "If the facts and the dozens of supporting documents presented by me were not sufficiently capable of "reconstructing the events", what then would be the reasons for two renowned Italian journalists to publish my story with the Respondent in an 'investigative book' (Eni: The Parallel State) which, in a few months, became a bestseller in Italy, and another journalist, a 'critical shareholder' of the Respondent, to take my case to be discussed in the course of four different shareholders' meetings?”.

Therefore, with the chronological presentation of facts that are fully proven and that are indisputably capable of convincing anyone, Eni needs to answer to the NCP Brazil a very pertinent question: "What would be the result of a "due diligence" conducted by the Internal Audit Department of the Respondent, if an ‘in-depth investigation’ was carried out on everything that was presented (and proven) in this Specific Instance?”.

And, unlike what Eni claims to NCP Brazil, I reiterate that the company is not acting in good faith, nor is it having an active participation, much less full collaboration in the work carried out by NCP Brazil, as it is unquestionable that Eni entered this Specific Instance with the predisposition not to carry out a “due diligence”, much less to carry out a “remediation”, as this conduct of Eni was absolutely clear when we observed its “list of requirements” totally contrary to the guidelines from the OECD Guide.

As a result, despite Eni's adverse impacts to my detriment have been fully proven, Eni may say goodbye to this Specific Instance — after the publication of the Final Statement — in non-compliance with the OECD Guidelines and in relation to the guidelines of the OECD Guide, including with regard to "remediation" because, even if Eni did not publicly admit its responsibilities, much less apologize for the misconceptions to my disadvantage, the "reparation" should have been proportionate to the meaning and escalation of the damage caused to my person, and this "remedy", of course, would need to be prescribed based only on "objective criteria", as they were minutely described in my manifestation, dated May 30, 2022 (see Doc. 02).