To
OECD Working Party on Responsible Business Conduct
Ms. Christine Kaufmann
Chair
Copy:
OECD
OECD Investment Committee
Bureau Members at OECD WPRBC
OECD Watch
Business at OECD (BIAC)
Trade Union Advisory Committee (TUAC)
Former Coninv-CAMEX Brazil (until December/2022)
Former IWG-NCP Brazil (until December/2022)
NCP Brazil (The Host NCP)
NCP Italy (The Support NCP)
Subject: NCP Brazil (Specific Instance nº 04/2020)
Dear Ms. Christine Kaufmann,
In August 2022, I was called by the NCP Brazil to make suggestions in the "draft" of the Final Statement regarding the Specific Instance nº 04/2020, in which I appear as Submitter and, the Italian oil giant ENI, as Respondent.
The aforementioned document (Doc. 01) was written in an incomprehensible and disorganized manner, omitting several essential - fully proven - facts, which resulted in the decontextualization of a history of almost 22 long years, thus, privileging the Respondent. Furthermore, some of this draft's paragraphs contain untrue texts that attack my honor and reputation. As if that were not enough, the way this document was written evidences an active, arrogant, and defensive participation of the NCP Italy in favor of the Respondent, revealing a serious and questionable conflict of interest in this Specific Instance, given that the NCP Italy is part of the Italian government's "direct public administration", the Respondent's "controlling shareholder".
As a result, on October 3rd, 2022, the NCP Brazil received my manifestation (Doc. 02), which included a series of requests duly substantiated in the OECD Report (NCPs for RBC: Providing access to remedy 20 years and the road ahead); in the "OECD Implementation Procedures" (available in the OECD Guidelines for Multinational Enterprises - 2023); in the NCP Brazil - Procedure Manual for Specific Instances (7.6: After hearing the parties, the NCP Brazil may initiate or resume the mediation process at any time during the preparation of the Final Statement of a Specific Instance); in the suggestions of OECD Watch; in the guiding principles of UNGP 31 and, mainly, in the guidelines of the OECD Due Diligence Guidance for Responsible Business Conduct (guidelines that are being neglected and despised by the Respondent. And, as incredible as it may seem, these non-observances I pointed out were not listed in the draft of the Final Statement).
Despite this - and without even justifying his decision -, the rapporteur of this Specific Instance once again prioritized the Final Statement and failed to corroborate for the NCP Brazil to fulfill its role granted by the OECD to all its NCPs around the world: "Legitimate remediation mechanisms through which grievances concerning enterprise-related adverse impacts can be raised and remedy can be sought"; "Ensuring that a person affected by negative corporate impacts can obtain some form of redress for their harm", as well as "Fostering solutions in relation to issues emerging from the implementation of the Guidelines by companies and establishing themselves firmly as remedy mechanisms and offering a unique dialogue platform".
Therefore, as the OECD states: "This difficult task of the NCPs to leverage access to 'remedies' through a 'dialogue' and 'facilitation', involves a 'detailed review of the issues', 'explore creative remedy solutions', and 'make strong recommendations', as well as 'determinations' as to whether or not the Respondent observed the Guidelines. These determinations can be a 'powerful signaling tool', helping to clarify the correct application of the Guidelines for companies, and can constitute a 'remedy' for the Submitter". And, since the NCPs do not have the authority to order a company to participate in the process or undertake measures to remedy impacts, arriving at a remedy will often depend on the NCP's ability to leverage its tools (mediation, recommendations, and determinations) in a way that fosters a solution to the issues".
So, on November 22nd, 2022, I invoked the Interministerial Working Group - National Contact Point (IWG-NCP) to request that this "collegiate" be able to analyze the arguments of my manifestation and the pertinence of my requests made to the NCP Brazil, which were being "disregarded" by the rapporteur of this Specific Instance. The aforementioned message was copied to the members of the National Committee of Investment (Coninv-CAMEX), the collegiate responsible for the supervision of the IWG-NCP.
Although the Final Statement was not published on the NCP Brazil's website (as I had requested), no decision on my case was taken by the IWG-NCP due to the inauguration of a new President of the Republic, which took place from January 1st, 2023. Without the respective "decrees", the members of the IWG-NCP have not been defined yet, which means that the NCP Brazil has been without any activities in all these months, therefore, they can't handle the cases that are already in progress, nor can they analyze new allegations of non-compliance with the OECD Guidelines for Multinational Enterprises, as informed by the NCP Brazil in a virtual meeting held on April 17th, 2023.
After that meeting, in early May 2023, the NCP Brazil said - in yet another evasive response to my new email - that "the case's rapporteur is on vacation and, as soon as he returns, we intend to talk to him regarding the proper routing of this Specific Instance". Note that, in July 2023, my case will complete its "third" anniversary. Despite my initial submissions and my manifestations (dated May/2022 and October/2022), does the NCP Brazil still not know which way will be given to my case after all this time? The impression that the NCP Brazil gives me is that this Specific Instance is in the hands of the rapporteur and, in my understanding, the rapporteur - who is never part of the IWG-NCP - is only an "instrument" of the NCP Brazil, who is the one responsible for the procedures, referrals, and the decision on the analyzed cases.
Now, what can the OECD and its advisory bodies do when the rapporteur of the Specific Instance nº 04/2020 doesn't corroborate for the NCP Brazil to fulfill its role: "to raise awareness and sensitize, to convince and motivate the Respondent about the need to exercise a 'due diligence' on the 'chronology of the facts' (Doc. 03) for the 'reconstruction of the events' involving the 'actions' and 'omissions' of the Respondent"? By doing that, the Respondent would be able to identify the "adverse impacts" to my disadvantage - these adverse impacts were "fully proven" by an abundant, rich, and robust supporting documentation. All this would be in accordance with the guidelines of the OECD Due Diligence Guidance for Responsible Business Conduct.
Now, what can the OECD and its advisory bodies do when the rapporteur of the Specific Instance nº 04/2020 fails to prepare a draft of the Final Statement as a mirror that completely reflects everything that was in fact manifested (and proven) by the Parties throughout the work conducted by the NCP Brazil?
Now, what can the OECD and its advisory bodies do when the Final Statement draft favors and benefits the Respondent to the detriment of the Submitter?
Now, to whom can the Submitter turn to when the NCP Brazil, besides conducting a Specific Instance directly violating the core criteria defined by the OECD (visibility, accessibility, transparency and accountability), also doesn't handle this Specific Instance in an impartial, predictable, equitable and, most importantly, compatible with the OECD Guidelines for Multinational Enterprises and the OECD Due Diligence Guidance for Responsible Business Conduct?
Now, who can help a Submitter when an NCP does not genuinely engage in procedures in line with the OECD Guidelines for Multinational Enterprises to try to obtain a "solution" to the issues presented and "fully substantiated"? Who can help a Submitter when the NCP doesn't make "recommendations" or "determinations" in the draft of the Final Statement on the grounds that the Respondent didn't observe the OECD Guidelines for Multinational Enterprises and, much less, the guidelines of the OECD Due Diligence Guidance for Responsible Business Conduct?
Now, why does the NCP Brazil not respond to my legitimate requests for information and doesn't address the specific issues raised by me in an appropriate, efficient, and timely manner, as the OECD orientates?
Now, why the NCP Brazil doesn't respect the Brazilian basic constitutional principles (such as transparency and publicity) and doesn't justify the reasons for not having taken into account my fully founded arguments in my manifestation (dated October 3rd, 2022) here attached, much less the reasons for not having accepted my requests for the NCP Brazil to fulfill its role granted by the OECD?
Would the answer to these questions be due to the inefficiency, negligence or incompetence of the NCP Brazil?
Or does the answer concern the NCP Brazil being intimidated and frightened by the posture adopted by both the Respondent and the NCP Italy during the work of this Specific Instance?
Or is the answer in the fact that NCP Brazil is acting with partiality and favors due to some conflict of interest in this Specific Instance? (It is important for the OECD to observe that the IWG-NCP is part of the Brazilian governmental structure, and that the National Committee of Investment (Coninv) is a collegiate member of the CAMEX (The Chamber of Foreign Trade), which has among its competences "the elaboration of public policy proposals, guidelines, and actions that contribute to direct foreign investment in Brazil and direct Brazilian investment abroad". The OECD also needs to note that the Respondent is the largest company in Italy and has the Italian government - a "friendly" nation and "commercial partner" of Brazil - as its "controlling shareholder").
For all the reasons presented here, I use this email to request that the OECD and its advisory bodies analyze my case through the documents here attached. After conducting a proper analyses, I request the OECD accept my suggestions listed below and take an appropriate action:
1) That the OECD call a more effective and efficient NCP without any kind of conflict of interest to carry out a "review" on the "procedures" adopted by the NCP Brazil, as well as on the "conduction" of this Specific Instance;
2) That this NCP chosen by the OECD can analyze the arguments contained in my manifestation (here attached) and the pertinence of my requests made to the NCP Brazil in order to return to Good Offices with the Respondent;
3) That this NCP chosen by the OECD can prepare a "new" Final Statement that is consistent with the "standards" required by the OECD and in accordance with everything that was manifested (and "proven") by me and the Respondent in this Specific Instance, including the "reaction" of the Respondent in relation to my manifestation sent to the NCP Brazil here attached;
4) That the OECD Watch is called to "follow" and "supervise" these revision works until the publication of the "new" Final Statement of the Specific Instance nº 04/2020 (NCP Brazil);
5) That the OECD and its advisory bodies can check the "role" of the NCP Italy in this Specific Instance, as well as the procedures adopted when I filed a complaint against the Respondent (Doc. 04) in 2015, and the respective "conclusion" of the case (Doc. 05), which is already in the OECD databaseç
6) And finally, I believe that the OECD needs to prioritize studies and analyzes for the creation of "specific guidelines" regarding whistleblowing of non-compliance with the OECD Guidelines for Multinational Enterprises when the "denounced company" has as a "controlling shareholder" an "adherent nation", thus preventing conflicts of interest. I suggest this because generally the NCPs are part of the "governmental structure" of the adherent nations. This way, the Submitters are protected from being harmed, as well as preventing them from having to endure yet another "disappointment" for not getting some kind of "reparation" for the adverse impacts suffered because of a powerful multinational company. This "remedy" will also need to at least be prescribed by means of a "trustworthy" Final Statement with the manifestations and proofs presented by the Submitters to some NCP around the world and, at the most, the necessary "reparation" in accordance with the guidelines of the OECD Due Diligence Guidance for Responsible Business Conduct.
Requesting the OECD WPRBC to kindly confirm having received this message, I immediately place myself at the disposal of the OECD, the OECD WPRBC, and its advisory bodies.
Best Regards.
Douglas Linares Flinto
Founder & CEO at Brazilian Business Ethics Institute
Submitter of Specific Instance nº 04/2020 of NCP Brazil
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