OECD Report 2020

In 2020, the OECD published a report entitled “Providing access to remedy 20 years and the road ahead” (Doc. 01), in commemoration of the 20th anniversary of the “National Contact Points for Responsible Business Conduct” (NCPs), taking stock of NCPs activity since 2000, recognizing the significant contribution they have made in addressing the impacts of business activity worldwide, and highlighting the challenges faced in delivering their role.

The introductory part of this report states that: “The relevance of the Guidelines has increased, as well as the need to make RBC standards more effective worldwide. Underpinned by the concept that businesses can do well while doing no harm, RBC standards expect that all businesses avoid and address the negative consequences of their operations, while contributing to sustainable development in the countries where they operate. A fundamental change in the meaning of RBC in the context of globalization has been the notion that business should carry out due diligence to identify, prevent and mitigate adverse impacts, according to the OECD Guide”. 

CHAPTER 1

REMEDY, ACCOUNTABILITY AND THE ROLE OF NCPs

Handling issues regarding corporate impacts raises inter-related questions of “accountability” and “remedy”. OECD Report examines NCPs under the angle of “remedy”, meaning that, through their mandate as “non-judicial grievance mechanisms under the Guidelines, they seek to ensure that a person(s) affected by negative corporate impacts can obtain some form of redress for their harm. Remedy can take the form of financial compensation or reparation, or through apologies, recognition of guilt, or guarantees of non-repetition”.

Conferring remedy for corporate impacts may also be analysed as holding the company accountable. “Corporate accountability means that a company answers for the impacts of its activities and accepts responsibility for them, possibly by facing consequences”. Under the Guidelines, such responsibility relates the expectation that companies should ‘contribute to economic, environmental and social progress with a view to achieving sustainable development’ (General Policies, para. 1.), and in that regard "avoid causing or contributing to adverse impacts on matters covered by the Guidelines, through their own activities, and address such impacts when they occur" (para. 11).

For a company, providing remedy for harm will often – though not always – go hand in hand with accepting responsibility for corresponding negative impacts. NCPs can also facilitate this second aspect, by clarifying the Guidelines’ expectations of companies and how the Guidelines’ recommendations apply to a company’s activities.

CHAPTER 2

UNDERSTANDING NCPs AND THEIR ROLE IN REMEDY

This report further underlines that “In 2000, NCPs were given the role of fostering solutions in relation to issues emerging from the implementation of the Guidelines by companies. They have embraced this role, establishing themselves firmly as remedy mechanisms and offering a unique dialogue platform and recognizing that: “NCPs must operate in accordance with a number of ‘core criteria’, namely visibility, accessibility, transparency and accountability. In addition, NCPs must handle cases in a way that is impartial, predictable, equitable and compatible with the Guidelines. Taken together, these criteria largely align with ‘UNGP 31’, which identifies ‘effectiveness criteria for non-judicial mechanisms’”.

CHAPTER 3

NCPs AND REMEDY: 20 YEARS OF CONTRIBUTION

It is important to highlight what has been recorded in this chapter: “While not required by the Guidelines, some NCPs also issue ‘determinations’ as to whether or not the company observed the Guidelines. These determinations can be a ‘powerful signalling tool’, helping to clarify correct application of the Guidelines for companies, and can constitute a ‘remedy’ for the Submitter”, and yet: “The Guidelines provide that good offices proceedings should remain confidential, but that NCPs should issue public statements when closing a case. Such publicity ensures visibility and transparency for the process, and may also contribute to remedy and to holding the company accountable where relevant. These public statements have an informative and normative value as they contain information about how the Guidelines should be interpreted in concrete cases".

CHAPTER 4

NCPs AND REMEDY: 20 YEARS OF CHALLENGES

Note what was described in this chapter: “The role of NCPs with respect to providing access to remedy is one of ‘dialogue’ and ‘facilitation’". As noted in section 3, NCPs do not have the authority to order a company to participate in the process or undertake measures to remedy impacts. As a result, 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. This difficult task entails managing submitters’ expectations, as well as helping companies navigate their responsibilities as regards remediation, in a way that is impartial, predictable, equitable and compatible with the Guidelines”.

Furthermore, “A second factor affecting remedy outcomes is the lack of mediation skills to facilitate productive dialogue. Many governments do not actively ensure that NCPs have access to trained mediators in-house, or the funds to hire external professional mediators. In these cases, good offices are often limited to bringing parties around the table and letting them talk through the issues, with limited engagement on the part of the NCP, and seldom lead to satisfactory agreements. Such absence of agreement can then lead to a second disappointment for the submitter if the NCP does not have the staff or the expertise necessary to engage in a ‘detailed review of the issues’, ‘explore creative remedy solutions’ and ‘make strong recommendations’”.

And finally, “With respect to impacts on human rights (addressed in over half of NCP cases), the UN Guiding Principles (UNGP 31), with which the human rights chapter of the Guidelines is aligned, specify that remedy has a substantive dimension. This means that remedy should be ‘effective’ from the point of view of the outcome achieved. There is no research to date assessing whether NCP- facilitated outcomes consistently qualify as effective remedy. NCPs must handle cases in a way that is compatible with the Guidelines, and therefore should consistently review this aspect of outcomes they facilitate. This is particularly critical when parties have been required to compromise and the submitters’ initial expectations are only partially satisfied”.

In the topic GUARANTEEING EQUITABLE AND SAFE PROCEEDINGS, this report also highlighted what are called “SLAPP suits” (Strategic Lawsuit Against Public Participation): 

“A SLAPP suit is a lawsuit filed ‘strategically’ by a corporation against a group or activist ‘opposing certain action taken by the corporation’, usually in the realm of an environmental protest. Typical claims underlying a SLAPP suit are ‘libel’, ‘slander’ or restraint of business”.

Note that any similarity with the two lawsuits for libel and defamation that Eni brings against me in Italy is not purely coincidental. 

In fact, these lawsuits are part of a corporate strategy: systemic retaliation and victimization instrumentally engineered. And thanks to its immense wealth and its great power, Eni is using "litigation" only as a tool to "attack" my credibility and try to intimidate and silence me, turning my life into a "legal ordeal" because these lawsuits, in addition to being unethical, also have a deterrent effect in that they aim to discourage other whistleblowers. 

Eni is abusing the legal system to punish a persona non grata who dared to stand up to the company with the Code of Ethics as a lifeline! 

Also note that the final outcome of the lawsuits against me does not matter to Eni because the objective is not to win the lawsuits but only to use them to inflict an “exemplary punishment” on me, as I am obliged to participate in these lawsuits in order to defend myself from instrumentally conceived accusations. 

In this way, Eni manages to exempt itself from its responsibilities in relation to all the damages and losses that I have been suffering, because the slowness of the Italian Justice is favorable to the company.