Email to IWG-NCP Brazil (November 22, 2022)

Since the NCP Brazil didn’t "justify" the reason for not taking into consideration my "arguments" contained in my manifestation (October 3rd, 2022), much less the reasons for my "requests" not being accepted, I wrote to all the members of the NCP Brazil’s Interministerial Working Group (IWG-NCP) copying the “supervising board” of the IWG-NCP, the National Investment Committee of the Foreign Trade Chamber (Coninv CAMEX).

Check out the message in full:

To
Members of the Interministerial Working Group of the NCP Brazil
(IWG-NCP)

 c.c. Presidency and members of the National Investment Committee  of the Foreign Trade Chamber (Coninv CAMEX)

 

Subject: Specific Instance nº 04/2020 (NCP Brazil)

 

Dear Ms. Eliana Rupsel (Chair of the Coninv - CAMEX),

Recently, the members of the IWG-NCP Brazil approved the "draft" of the Final Statement referring to the Specific Instance nº 04/2020, in which I appear as Submitter and, the Italian oil giant ENI, as Respondent.

The said document (Doc. 01) was written in a disorganized and difficult-to-understand manner, as well as having omitted several important — and fully proven —, which resulted in the decontextualization of a history of more than 21 long years, favoring the Respondent. In addition, this draft has paragraphs with untrue texts that end up tarnishing my honor and reputation. As if that were not enough, the wording of this document evidences an active and defensive participation of NCP Italy in favor of the interests of the Respondent, revealing a serious and questionable conflict of interest in this Specific Instance, given that NCP Italy is part of the Italian government's Direct Public Administration, the Respondent's controlling shareholder.

As a result, on October 03, 2022, the NCP Brazil received an email containing my "manifestation" (Doc. 02), which included a series of "requests" duly substantiated in the:

"Report OECD" (Providing access to remedy: 20 years and the road ahead);

"OECD Procedural Guidelines" (available in the OECD Guidelines for Multinational Enterprises);

"Manual of Procedures 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 Declaration of a Specific Instance (Doc. 01);

"OECD Watch" suggestions (Doc. 02); 

"OECD Due Diligence Guidance for Responsible Business Conduct" (Doc. 03): guidelines that are being neglected by the Respondent and, incredible as it may seem, these non-observances were not listed in the draft of the Final Statement.

Despite this and without even justifying their decision, the rapporteur of this Specific Instance is, once again, "prioritizing" the Final Statement and failing to corroborate for NCP Brazil to fulfill its role granted by the OECD to all 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" and further "foster 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 for NCPs to leverage access to remedy is one of ‘dialogue’ and ‘facilitation, involves ‘detailed review of the issues’, ‘explore creative remedy solutions’ and ‘make strong recommendation, in addition to 'determining' whether or not the Respondent complied with the Guidelines. These 'determinations' can be a ‘powerful signaling tool’, helping to clarify correct application of the Guidelines for companies, and can constitute a ‘remedy’ for the Submitter. And, since NCPs do not have the authority to order a company to participate in the process or undertake measures to remedy impacts, arriving at 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.

For all these reasons, I use this e-mail to request that each of the IWG-NCP members analyze my statement and then call an extraordinary meeting (Art. 7 of Decree nº 11.105/2022) so that this "collegiate" can decide on the pertinence of my requests made to NCP Brazil and which are being disregarded by the rapporteur of this Specific Instance.

In order to comply with the "principles of transparency and publicity", which are constitutional foundations of Public Administration, I request that the IWG-NCP send me the "reasons" for this collegiate's decision, containing the "reasons" for having (or not) taken into account my "arguments" found in my manifestation, and the "reasons" for the NCP Brazil to be urged (or not) by the IWG-NCP to fulfill its role in this Specific Instance. 

Finally, I also request that, only after this decision (and the eventual measures of the NCP Brazil), the Final Statement be completed and published as a mirror and, in this way, can completely reflect everything that, in fact, was manifested (and proven) by the Submitter and the Respondent.

I place myself, from now on, at the disposal of the IWG-NCP.

Best Regards 

Douglas Linares Flinto
Submitter of Specific Instance nº 04/2020
and Founder & CEO of the Brazilian Business Ethics Institute