OECD Watch and the advisory bodies Trade Union Advisory Committee (TUAC) and Business at OECD (BIAC) represent the interests of their respective constituencies in the Organization for Economic Co-operation and Development (OECD), participating in regular stakeholder consultations and providing other input to the OECD, National Contact Points (NCPs), or member and acceding governments.
OECD Watch has a “brochure” (Doc. 01) that provides an overview of the Guidelines and the associated complaint mechanism, including demonstrating the main features of the 2011 update of the OECD Guidelines. Although some fundamental shortcomings remain, such as the lack of enforcement mechanisms, the update introduced substantial new provisions in areas such as:
DUE DILIGENCE
“Due diligence” is a process in which enterprises “actively” identify, prevent, mitigate and “account” for how they address actual and potential “adverse impacts”. The due diligence process entails “assessing actual and potential impacts”, “integrating and acting upon the findings”, “tracking responses” as well as “communicating how impacts are addressed”.
The OECD Guidelines “require” enterprises “to conduct due diligence on issues covered by the Guidelines”, including “human rights”, “employment”, environment, corruption and consumer interests.
HUMAN RIGHTS AND STAKEHOLDER ENGAGEMENT
The Guidelines insist that enterprises should respect all human rights, wherever they operate. They should also avoid causing or contributing to human rights abuses and “engage in meaningful stakeholder engagement with individuals” and communities that have been affected.
In addition, the procedures that NCPs must follow, regarding the management of complaints, have also been improved:
NCP PERFORMANCE
NCPs must be impartial, predictable, and equitable in handling complaints. They should prioritize transparency, set and follow timelines, follow predictable procedures and make themselves visible and accessible to all stakeholders. In addition, there are rules common to all NCPs. I highlight two of them:
a) When: “Complaints” can be filed for “past violations” that “have not been sufficiently addressed by the company”, for violations currently occurring or for violations that may occur if a company goes ahead with planned activities for which it has not carried out appropriate due diligence.
b) Why: OECD Guidelines complaints can (but are certainly not guaranteed to) bring about changes in corporate behaviour, raise public awareness and provide a mechanism for remedying grievances.
This brochure summarizes what is published on the OECD Watch website about the Final Declaration and follow-up (Doc. 02):
a) Final Statement Process:
After the Good Offices stage finishes, the NCP will draft a Final Statement. The Final Statement may either explain why the issues do not merit further consideration, explain any agreement reached by the parties, or, if no agreement is reached, provide an overview of the issues raised and procedures followed. Parties may be asked to provide comments on a draft Final Statement.
b) Determinations and recommendations:
Especially if parties do not reach agreement, OECD Watch “encourages NCPs to commit to including in their Final Statement”:
- A “determination” on whether the company met or did not meet the expectations in the OECD Guideline;
- A request for other “ministries” to apply consequences to companies that did not participate in the process of “good faith”.
OECD Watch considers these steps important to “incentivize” companies to “negotiate” in “good faith” towards reaching an “agreement”.
c) Follow-up process:
Increasing numbers of NCPs are following-up on the outcomes of the cases they handle, either by investigating the situation themselves or seeking update reports from the parties about six to 12 months after the case conclusion. The reason for follow-up is to assess whether or not the company is complying with any agreements reached or recommendations made by the NCP. OECD Watch supports the practice of some NCPs to publish a written follow-up statement.
d) Role of Submitters:
As a Submitter, you may be asked to comment on a draft Final Statement. Make sure the Final Statement “accurately represents your position and your sentiment towards the complaint process”. Feel free to urge the NCP to include in the Final Statement “determinations”, “recommendations”, a “request for consequence”, and a “commitment to engage in follow-up”.
You should also feel free to publish your own statement on the case proceedings and outcome, as well as your own follow-up monitoring statement six to 12 months after the process has concluded.
Furthermore, It was pointed out during the workshop — held on May 27, 2022 — that some complaints to NCPs are more likely to be successful, including:
- Complaints filed to more effective NCPs that are willing to investigate claims even if companies do not participate in mediation, make determinations that companies have breached the Guidelines, impose consequences on companies found to be in breach, and consider novel topics or claims;
- Complaints embedded in broader advocacy strategies, including those involving media outreach, parallel complaints, and parallel government, business, or investor advocacy.
TRANSPARENCY AND CAMPAIGNING
Finally, OECD Watch explains what complainants should expect from NCPs and how complainants themselves can navigate the fine line between “transparency” and “confidentiality”.
OECD Watch believes NGOs can continue campaigning during a complaint and still respect appropriate NCP rules on confidentiality.
Some believe that public campaigning during a complaint may reduce a company’s willingness to engage in the NCP process. However, in the experience of OECD Watch, campaigning can also correct a power imbalance against complainants, by incentivizing the company to engage to “protect its reputation”.
NGOs should decide which strategy is more likely to result in a positive resolution of the issue in question. Unfortunately, some NCPs see campaigning during a complaint as a breach of confidentiality or good faith, and may dismiss a complaint if complainants communicate anything publicly about it. This is beyond the guidance NCPs have received from the OECD.
Ultimately, the Submitter must decide "whether" and "how" to proceed with a complaint and campaign in light of transparency or confidentiality requirements. In some cases, a strict confidentiality agreement may benefit a complainant, provided the NCP adheres to the time frame and acts with scrupulous fairness. In others, a Submitter must continue to report to its members, the community, other stakeholders, and the public about the complaint process and outcome.
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