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)
NCP Brazil (The Host NCP)
NCP Italy (The Support NCP)
Subject: What the hell is the NCP Brazil doing?
Dear Ms. Christine Kaufmann,
The publication of the Final Statement of the Specific Instance nº 04/2020 - just three days after I contacted the OECD Working Party on Responsible Business Conduct - is strong evidence that the NCP Brazil has several issues when it comes to handling cases of those who have suffered adverse impacts caused by multinational companies, as will be demonstrated in the facts below.
Note that, on March 28, 2023, in response to my submission of non-compliance with the OECD Guidelines against the Brazilian state-owned Petrobras - which had been received by the NCP Brazil on November 25, 2022 -, the Executive Secretariat of the NCP Brazil sent me an e-mail (Doc. 01) in the following terms: "Due to the change in the presidency of the Republic, there have been a series of changes in the structures of the ministries, among them, the fact that the NCP Brazil is now linked to the Ministry of Development, Industry, Commerce, and Services. In this sense, it should be explained that we are still restructuring not only the NCP Secretariat but the entire IWG-NCP team, made up of members from different ministries. These redefinitions demand a series of negotiations and considerable time, not under the control of the NCP. For this reason, it has not yet been possible to proceed with the request on screen. It should be noted that we will resume contact as soon as possible".
Also note that, on April 17, 2023, at the request of the NCP Brazil itself, I participated in a virtual meeting that had the participation of the only authorities with decision power in the NCP Brazil: the Executive Secretary and the "new" General-Coordinator. The subject to be dealt with would be the "Demands forwarded by the Submitter to the NCP Brazil", as per the invitation forwarded to me (Doc. 02).
The dialogues of this virtual meeting (Doc. 03) confirm that neither the NCP Brazil's Executive Secretary nor the NCP Brazil's new General-Coordinator doesn't have the slightest knowledge about the Specific Instance nº 04/2020. Besides that, the actions that would be implemented by the NCP Brazil, as agreed during this virtual meeting, were not carried out.
However, a very important fact stated by the new General-Coordinator of the NCP Brazil in this virtual meeting, which took place on April 17, 2023, needs to be underlined: "You have to know a few things. The change in government will be bigger than we thought. The IWG-NCP will be reconstituted with many new actors. We are going to start a series of personal meetings to talk about what the NCP Brazil is and what the OECD Guidelines are in a government that is not getting as close to the OECD as the former government. This political outline is also important so that you have a certain peace of mind regarding deadlines. I assure you that I will get involved in your case; I will analyze it carefully because you deserve it and because I know that a 20-year process is extremely exhausting. So the least we can do is give you all the attention in the world. I only ask for a little patience because of this new context of novelty. Even the NCP Brazil team today only has me and an assistant. We are all starting. So I'm giving you a time horizon so that we can work as seriously as possible".
So, the new General-Coordinator of the NCP Brazil, when sending me an email on May 2, 2023 (Doc. 04), in response to my inquiring about the analysis of my manifestation of October/2022 (sent to the IWG-NCP on November 22, 2022*), as agreed during the aforementioned virtual meeting, stated that: "The IWG-NCP has not yet been reconstituted and continues without a Decree and formal meeting", as well as, "The rapporteur of the case is on vacation and, as soon as he returns, we intend to talk to him about the proper handling of this Specific Instance".
But surprisingly, the NCP Brazil, on June 2, 2023, just three days after I made contact with the OECD WPRBC, published the Final Statement of the Specific Instance nº 04/2020. And the NCP Brazil website was updated with the following information: "On August 22, 2022, the draft of the Final Statement was forwarded, approved by the IWG-NCP for analysis by the parties and the NCP Italy. On December 1, 2022*, after the rapporteur adapted the document considering the contributions of the parties, the IWG-NCP approved the final version of the Final Statement. Due to the change of Government and, consequently, the restructuring of the IWG-NCP, on June 1, 2023, with the new conformation of the IWG-NCP, the approval of the Final Statement of the Specific Instance nº 04/2020 was unanimously ratified".
Now, the federal decree - to reconstitute the IWG-NCP - was signed and came into effect on May 10, 2023 (Doc. A). So, how come that in just three weeks the NCP Brazil's Executive Secretary and the NCP Brazil's new General-Coordinator talked to all the new members of the IWG-NCP to inform them of the role of an NCP and what the OECD Guidelines are, and to break down the complex Specific Instance nº 04/2020 (so that the new members of the IWG-NCP would have full conditions to analyze the case), as well as adjusting everyone's schedule for a meeting and, unanimously, deciding to approve and publish the Final Statement?
Now, as has been fully demonstrated, if neither the Executive Secretary of the NCP Brazil much less the new General-Coordinator of the NCP Brazil were aware of the Specific Instance nº 04/2020, how could the old and, mainly, the new members of the IWG-NCP - who occupy positions in the Brazilian government and have exhausting duties and working hours with exclusive dedication - have enough knowledge about this complex Specific Instance to have judgment capacity and decide for the approval of the content of the Final Statement?
Therefore, it is more than evident that the Specific Instance nº 04/2020 was conducted - solely and exclusively - by the rapporteur of the case. It is more than evident that it was the rapporteur who decided not to accept my - fully justified - arguments or requests made to the NCP Brazil. It is more than evident that the rapporteur wrote the Final Statement the way he wanted, without any kind of interference from the NCP Brazil because, as demonstrated, the NCP Brazil is totally unaware of the facts (and proofs) presented by me through my initial submissions and my manifestations of May and October/2022.
Now, how can a rapporteur, who does not act on the NCP Brazil and is not a member of the IWG-NCP, but only an instrument of the NCP Brazil itself, decide the course of the Specific Instance nº 04/2020, not corroborate so that the NCP Brazil fulfills its role granted by the OECD, decide what will be written and what will not be written in the Final Statement and, above all, approve the final content of the Final Statement and order the NCP Brazil to publish it?
Now, how can a rapporteur disregard the Submitter's - duly substantiated - arguments and his requests to the NCP Brazil and not justify this decision? And why did the NCP Brazil accept, without any contestation or questioning, the rapporteur's decisions and the content of the Final Statement, and authorized the publication of the Final Statement on the NCP Brazil website?
If the draft of the Final Statement (Doc. 05) is compared with the Final Statement published by the NCP Brazil (Doc. 06), it will be more than evident that the structure remained practically intact, as well as maintaining the disorganization, the difficulty of understanding what as written, and the attacks on my honor and reputation. Besides that, the rapporteur did not accept the vast majority of my suggestions for changes in the draft of the Final Statement and continued to omit important and fully proven facts. Among the omitted important and proven facts, I highlight: a) The Brazilian labor court recognized that I was the "whistleblower"; b) The Eni 2002 Balance Sheet - which the company stated at the Shareholders' Meeting (AGM) held at the company's headquarters in 2017, having published the result of the in-depth investigation into my case, carried out in 2002 - there's not any mention of met; c) The 2nd and 3rd versions of my dismissal, presented by the Respondent (in 2010 in a lawsuit against me, and in 2017 during the AGM, in response to questions from a critical shareholder of the company), are proven to be "false" versions" because the Respondent - for never having carried out a due diligence of my case - only replicated and shared the information provided by the executives of the Brazilian subsidiary of the Respondent, including some directors that I had denounced; c) Eni never responded to my insistent contacts, nor did it ever respond to the Proposal for Amicable Settlement requested by the company itself on November 2020 through the Italian ambassador in Brazil; d) Eni also refused to carry out a due diligence of my case during the work of this Specific Instance, in accordance with my request made to the Respondent and described in my "opening speech", which was attached to the draft of the "Work Plan" by the NCP Brazil; e) Eni neglected several guidelines of the OECD Due Diligence Guidance for Responsible Business Conduct that were not listed in the draft of the Final Statement, nor in the Final Statement (published on June 2, 2023), and, much less did it contain a " determination" that the Respondent did not comply with the OECD Guidelines for Multinational Enterprises; and, f) My case is not an isolated case, and this demonstrates how the Respondent has numerous and serious problems in the "whistleblowing process", including when it comes to the "protection of whistleblowers" and the failure to carry out a "due diligence" after receiving a whistleblowing. Despite this, no "recommendations" were made for the Respondent.
And what is even more questionable and very suspicious: the rapporteur, accepting the suggestions for changes in the draft of the Final Statement requested by the Respondent and by the company's "faithful squire" (the NCP Italy), changed the wording of this document, further benefiting and favoring the Italian oil giant.
As a result, anyone reading the Final Statement published by the NCP Brazil will easily be led to have a distorted view of my ethical conflict with the Respondent, and may even be convinced that I am the villain of the story, and Eni the victim of an unscrupulous and opportunistic former executive, which is something that not only tarnishes my reputation as CEO of a non-profit organization that promotes ethics in Brazil but frightens and scares away the partner companies of the Brazilian Business Ethics Institute.
It should be clarified that I am fully aware that the OECD grants the NCPs autonomy in handling Specific Instances. However, this autonomy does not mean that the NCPs can neglect their role granted by the OECD, that is, this autonomy does not mean that the NCPs can conduct a Specific Instance at their own sweet will, nor can the NCPs publish a Final Statement that is not a mirror of everything that has been manifested and proven (which deprives the Submitter of obtaining a minimum reparation), much less gives the NCPs the right to harm a Submitter.
Likewise, this autonomy granted by the OECD to the NCPs does not mean that the Specific Instance nº 04/2020 can remain in the hands of the rapporteur of the case - without any interference by the NCP Brazil -, much less that the supporting NCP (the NCP Italy) can neglect its role in this Specific Instance and be partial, defending the interests of the Respondent and disregarding the facts and the more than one hundred documents presented to the NCP Brazil that were sufficiently capable of fully proving my allegations to the disadvantage of the Respondent.
Therefore, when such a situation arises, I believe there is a need for the OECD and its advisory bodies to come to the Submitter's defense to safeguard the reputation, integrity, transparency, credibility, and good efforts in improving the OECD Guidelines for Multinational Enterprises.
In this sense, I request that the OECD and its advisory bodies take into account my arguments contained in my email of May 30, 2023, accepting my requests and taking the necessary measures because only in this way can it be done what is right; because only in this way can my case be handled in accordance with OECD guidelines; because only in this way the OECD and its advisory bodies will be able to correct the errors, disrespect, partiality, and arbitrariness of the rapporteur of this Specific Instance, as well as the inefficiency, negligence, complacency, and injustices of the NCP Brazil to my disadvantage.
So, before the OECD and its advisory bodies analyze my case and take any measures, I request that the Final Statement of the Specific Instance nº 04/2020 be removed from the NCP Brazil website and from the OECD database.
Best Regards.
Douglas Linares Flinto
Founder & CEO at Brazilian Business Ethics Institute
Submitter of Specific Instance nº 04/2020
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