OECD Procedural Guidance

The 2011 edition of the OECD Guidelines for Multinational Enterprises presents the “Procedural Guidance” (Doc. 01). Some points should be highlighted in this manifestation, as they are related to this Specific Instance.

IMPLEMENTATION IN SPECIFIC INSTANCES

a) Offer, and with the agreement of the parties involved, facilitate access to consensual and non-adversarial means, such as conciliation or mediation, to assist the parties in dealing with the issues.

b) A statement when no agreement is reached or when a party is unwilling to participate in the procedures. This statement should at a minimum describe the issues raised, the reasons why the NCP decided that the issues raised merit further examination and the procedures the NCP initiated in assisting the parties. The NCP will make “recommendations” on the implementation of the Guidelines as appropriate, which should be “included” in the statement. Where appropriate, the statement could also include the reasons that agreement could not be reached.

c) While the procedures under paragraph 2 are underway, confidentiality of the proceedings will be maintained. At the conclusion of the procedures, if the parties involved have not agreed on a resolution of the issues raised, they are free to communicate about and discuss these issues. However, information and views provided during the proceedings by another party involved will remain confidential, unless that other party agrees to their disclosure “or this would be contrary to the provisions of national law”.

d) The effectiveness of the Specific Instances procedure depends on “good faith” behaviour of all parties involved in the procedures. Good faith behaviour in this context “means” responding in a timely fashion, maintaining confidentiality where appropriate, “refraining from misrepresenting the process” and from threatening or taking reprisals against parties involved in the procedure, and “genuinely engaging in the procedures with a view to finding a solution to the issues raised in accordance with the Guidelines”.

CORE CRITERIA FOR FUNCTIONAL EQUIVALENCE IN THE ACTIVITIES OF NCPs

a) Visibility: Governments are expected to publish information about their NCPs and to take an active role in promoting the Guidelines.

b) Accessibility: NCPs would respond to all legitimate requests for information, and also undertake to deal with specific issues raised by parties concerned in an “efficient and timely manner”.

GUIDING PRINCIPLES FOR SPECIFIC INSTANCES

Equitable: NCPs should ensure that the parties can engage in theprocess on fair and equitable terms, for example by providing reasonable access to sources of information relevant to the procedure.

COORDITATION BETWEEN NCPs IN SPECIFIC INSTANCES

Generally, issues will be dealt with by the NCP of the country in which the issues have arisen. Among adhering countries, such issues will first be discussed on the national level and, where appropriate, pursued at the bilateral level. The NCP of the host country should consult with the NCP of the home country in its efforts to assist the parties in resolving the issues. The NCP of the home country “should strive to provide appropriate assistance in a timely manner” when “requested” by the NCP of the host country.

PARTIES ASSISTANCE

Where the issues raised merit further consideration, the NCP would discuss the issue further with parties involved and offer “good offices” in an effort to contribute informally to the resolution of issues. Where relevant, NCPs will follow the procedures set out in paragraph C-2a) through C-2d). This could include seeking the advice of relevant authorities, as well as representatives of the business community, labour organizations, other NGOs, "and experts”. Consultations with NCPs in other countries or seeking guidance on issues related to the interpretation of the Guidelines may also help to resolve the issue.