OECD Due Diligence Guidance for Responsible Business Conduct

We cannot fail to make a parallel between Eni's requirements and the facts (and proofs) demonstrated by me in this manifestation, with the content of the guidelines of the OECD Due Diligence Guidance for Responsible Business Conduct (Doc 01), from now on referred to as just the "OECD Guide".

Therefore, it is extremely important that the NCP Brazil "listens" to what Eni has to say about the "negligence" and "non-conformities" in relation to the guidelines contained in the OECD Guide as well as, if necessary, wait for the "reaction” of Eni after the appropriate and timely contribution of NCP Italy to the Italian government, Eni’s controlling shareholder, with regard to “Principle 4”, of UNGP 31 - UN Guiding Principles on Business and Human Rights (Doc. 02).

So, it will be good manners that, only after these manifestations by the Respondent, the Final Statement can be published as a “mirror” of this Specific Instance and reflect completely, everything that was manifested by the Parties before the NCP Brazil.

First, I would like to highlight what the preface of the OECD Guide says about the purpose of this OECD Guide: 

“To provide practical support to enterprises on the implementation of the OECD Guidelines for Multinational Enterprises by providing plain language explanations of its due diligence recommendations and associated provisions”

“Helps businesses (enterprises) to understand and implement due diligence for RBC as foreseen in the OECD Guidelines”. 

Note that Eni is still neglecting numerous points described in the OECD Guide in relation to my case, and as a result, Eni is still undeniably in “non-compliance” with the OECD Guidelines for Multinational Enterprises (Doc. 03):

ESSENTIAL ELEMENTS OF DUE DILIGENCE

a) When involvement in adverse impacts cannot be avoided, due diligence should enable enterprises to mitigate them, prevent their recurrence and, where relevant, remediate them;

b) It is recommended that each enterprise addresses its own responsibility with respect to adverse impacts;

c) Stakeholders are persons or groups who have interests that could be affected by an enterprise’s activities. Stakeholder engagement is characterized by two-way communication. It involves the timely sharing of the relevant information needed for stakeholders to make informed decisions in a format that they can understand and access. To be meaningful, engagement involves the good faith of all parties. Meaningful engagement with relevant stakeholders is important throughout the due diligence process. In particular, when the enterprise may cause or contribute to, or has caused or contributed to an adverse impact, engagement with impacted or potentially impacted stakeholders and rightsholders will be important. For example, depending on the nature of the adverse impact being addressed, this could include participating in and sharing results of on-site assessments, developing risk mitigation measures, ongoing monitoring and designing of grievance mechanisms;

d) Communicating information on due diligence processes, findings and plans is part of the due diligence process itself. It enables the enterprise to build trust in its actions and decision making, and demonstrate good faith. An enterprise should account for how it identifies and dresses actual or potential adverse impacts and should communicate accordingly. Information should be accessible to its intended audiences (e.g. stakeholders, investors, consumers, etc.) and be sufficient to demonstrate the adequacy of an enterprise’s response to impacts. Communication should be carried out with due regard for commercial confidentiality and other competitive or security concerns. Various strategies may be useful in communicating to the extent possible while respecting confidentiality concerns.

DUE DILIGENCE PROCESS

a) Assess the enterprise’s involvement with the actual or potential adverse impacts identified in order to determine the appropriate responses. Specifically, assess whether the enterprise: caused (or would cause) the adverse impact; or contributed (or would contribute) to the adverse impact; or whether the adverse impact is (or would be) directly linked to its operations, products or services by a business relationship.

• Consult with impacted stakeholders and rightsholders or their legitimate representative;

• If impacted stakeholders or rightsholders disagree with the enterprise’s assessment of its involvement with any actual or potential adverse impact, cooperate in good faith with legitimate mechanisms designed to help resolve the disagreements and provide remediation.

b) Track the implementation and effectiveness of the enterprise’s due diligence activities, i.e. its measures to identify, prevent, mitigate and, where appropriate, support remediation of impacts, including with business relationships. In turn, use the lessons learned from tracking to improve these processes in the future.

• For human rights impacts the enterprise has, or may, cause or contribute to, seek to consult and engage impacted or potentially impacted rightsholders, including workers, workers’ representatives and trade unions;

• Identify adverse impacts or risks that may have been overlooked in past due diligence processes and include these in the future.

c) Communicate how impacts are addressed 

• For human rights impacts that the enterprise causes or contributes to, be prepared to communicate with impacted or potentially impacted rightsholders in a timely, culturally sensitive and accessible manner, the information above that is specifically relevant to them, in particular when relevant concerns are raised by them or on their behalf.

d) When the enterprise identifies that it has caused or contributed to actual adverse impacts, address such impacts by providing for or cooperating in their remediation.

• Seek to restore the affected person or persons to the situation they would be in had the adverse impact not occurred (where possible) and enable remediation that is proportionate to the significance and scale of the adverse impact;

• Comply with the law and seek out international guidelines on remediation where available, and where such standards or guidelines are not available, consider a remedy that would be consistent with that provided in similar cases. The type of remedy or combination of remedies that is appropriate will depend on the nature and extent of the adverse impact and may include apologies, restitution or rehabilitation (e.g., reinstatement of dismissed workers, recognition of the trade union for the purpose of collective bargaining), financial or non-financial compensation (for example, establishing compensation funds for victims, or for future outreach and educational programes), punitive sanctions (for example, the dismissals of staff responsible for wrongdoing), taking measures to prevent future adverse impacts;

• In relation to human rights impacts, consult and engage with impacted rightsholders and their representatives in the determination of the remedy;

• Seek to assess the level of satisfaction of those who have raised complaints with the process provided and its outcome(s).

e) When appropriate, provide for or cooperate with legitimate remediation mechanisms through which impacted stakeholders and rightsholders can raise complaints and seek to have them addressed with the enterprise. Referral of an alleged impact to a legitimate remediation mechanism may be particularly helpful in situations where there are disagreements on whether the enterprise caused or contributed to adverse impacts, or on the nature and extent of remediation to be provided.

• Cooperate in good faith with judicial or non-judicial mechanisms. For example: if a specific instance is submitted to an NCP or through initiatives that provide other types of grievance mechanisms involving the conduct of the enterprise.

Eni will also need to observe in this Specific Instance, what is masterfully answered by the OECD Guide:

a) What does it mean to cooperate with legitimate remediation mechanisms?

If an enterprise may have caused or contributed to an adverse impact, the enterprise may engage with any of the various systems under of the OCED Guidance (including, of course, National Points of Contact) to determine whether it has caused or contributed to the adverse impact and to provide remedy in such cases.

b) What is meant by remediation and remedy?

“Remediation” and “remedy” refer to both the processes of providing remedy for an adverse impact and to the substantive outcomes (i.e. remedy) that can counteract, or “make good”, the adverse impact.

c) What is the difference between an early warning system and a process to enable remediation?

The objective of an early warning system is to identify risks (or actual impacts) related to an enterprise’s own activities or its business relationships. FOR EXAMPLE, an enterprise might establish a worker hotline to provide na opportunity for workers to raise concerns about issues affecting their rights, such as health and safety conditions.

The objective of a process to enable remediation is to provide remedy to people who have been harmed. FOR EXAMPLE, a worker may raise a complaint against management for unfair firing. The worker and the enterprise are brought together to determine an adequate remedy (e.g. reinstatement, compensation, etc.).

Note that the OECD Guide itself highlighted the “essence” of this Specific Instance: an “unfair firing”. 

So, in my case, Eni will need to carry out a "due diligence" according to the facts and the abundant, rich, and robust "supporting documentation", including the "chronology of the facts" (Doc. 03) presented in this Specific Instance and which was, indisputably, able to “reconstruct the events” about the “actions” and “omissions” of both Eni's Brazilian subsidiary and Eni itself.

And why does the Respondent need to perform a “due diligence” on my case? The OECD Guide answers this question: 

“Due diligence should help enterprises anticipate and prevent or mitigate these impacts [...]. Effectively preventing and mitigating adverse impacts may in turn also help an enterprise maximise positive contributions to society, improve stakeholder relationships and protect its reputation [...]. An enterprise can also carry out due diligence to help it meet legal requirements pertaining to specific RBC issues, such as local labour, environmental, corporate governance, criminal or anti-bribery laws”.

Therefore, proceeding in this way, Eni would be in compliance regarding my case, presented in this Specific Instance, according to the guidelines of the OECD Guide itself: 

“Due diligence is the process enterprises should carry out to identify, prevent, mitigate and account for how they address these actual and potential adverse impacts in their own operations, their supply chain and other business relationships, as recommended in the OECD Guidelines. Effective due diligence should be supported by efforts to embed RBC into policies and management systems, and aims to enable enterprises to remediate adverse impacts that they cause or to which they contribute”.