Learn all about Eni's non-compliance with the OECD Guidelines for MNEs regarding the "Flinto case"
In Doc. 01, I sent my "suggestions" to PCN Brasil for the relevant "changes" to be included in the draft of the Final Statement and the respective "justifications".
These changes are based on the considerations, analyzes and reflections pointed out in this website.
Dear Mr. Marcio Lima,
Best Regards
Douglas Linares Flinto
Founder & CEO
Brazilian Business Ethics Institute
Important note: access the original email in the Portuguese language in this LINK.
Since the NCP Brazil didn’t "justify" the reason for not taking into consideration my "arguments" contained in my manifestation (October 3rd, 2022), much less the reasons for my "requests" not being accepted, I wrote to all the members of the NCP Brazil’s Interministerial Working Group (IWG-NCP) copying the “supervising board” of the IWG-NCP, the National Investment Committee of the Foreign Trade Chamber (Coninv CAMEX).
Check out the message in full:
To
Members of the Interministerial Working Group of the NCP Brazil
(IWG-NCP)
c.c. Presidency and members of the National Investment Committee of the Foreign Trade Chamber (Coninv CAMEX)
Subject: Specific Instance nº 04/2020 (NCP Brazil)
Dear Ms. Eliana Rupsel (Chair of the Coninv - CAMEX),
Recently, the members of the IWG-NCP Brazil approved the "draft" of the Final Statement referring to the Specific Instance nº 04/2020, in which I appear as Submitter and, the Italian oil giant ENI, as Respondent.
The said document (Doc. 01) was written in a disorganized and difficult-to-understand manner, as well as having omitted several important — and fully proven —, which resulted in the decontextualization of a history of more than 21 long years, favoring the Respondent. In addition, this draft has paragraphs with untrue texts that end up tarnishing my honor and reputation. As if that were not enough, the wording of this document evidences an active and defensive participation of NCP Italy in favor of the interests of the Respondent, revealing a serious and questionable conflict of interest in this Specific Instance, given that NCP Italy is part of the Italian government's Direct Public Administration, the Respondent's controlling shareholder.
As a result, on October 03, 2022, the NCP Brazil received an email containing my "manifestation" (Doc. 02), which included a series of "requests" duly substantiated in the:
"Report OECD" (Providing access to remedy: 20 years and the road ahead);
"OECD Procedural Guidelines" (available in the OECD Guidelines for Multinational Enterprises);
"Manual of Procedures for Specific Instances": 7.6) After hearing the parties, the NCP Brazil may initiate or resume the mediation process at any time during the preparation of the Final Declaration of a Specific Instance (Doc. 01);
"OECD Watch" suggestions (Doc. 02);"OECD Due Diligence Guidance for Responsible Business Conduct" (Doc. 03): guidelines that are being neglected by the Respondent and, incredible as it may seem, these non-observances were not listed in the draft of the Final Statement.
Despite this and without even justifying their decision, the rapporteur of this Specific Instance is, once again, "prioritizing" the Final Statement and failing to corroborate for NCP Brazil to fulfill its role granted by the OECD to all NCPs around the world: "legitimate remediation mechanisms through which grievances concerning enterprise-related adverse impacts can be raised and remedy can be sought, ensuring that a person affected by negative corporate impacts can obtain some form of redress for their harm" and further "foster solutions in relation to issues emerging from the implementation of the Guidelines by companies and establishing themselves firmly as remedy mechanisms and offering a unique dialogue platform".
Therefore, as the OECD states: This difficult task for NCPs to leverage access to remedy is one of ‘dialogue’ and ‘facilitation, involves ‘detailed review of the issues’, ‘explore creative remedy solutions’ and ‘make strong recommendation, in addition to 'determining' whether or not the Respondent complied with the Guidelines. These 'determinations' can be a ‘powerful signaling tool’, helping to clarify correct application of the Guidelines for companies, and can constitute a ‘remedy’ for the Submitter. And, since NCPs do not have the authority to order a company to participate in the process or undertake measures to remedy impacts, 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.
For all these reasons, I use this e-mail to request that each of the IWG-NCP members analyze my statement and then call an extraordinary meeting (Art. 7 of Decree nº 11.105/2022) so that this "collegiate" can decide on the pertinence of my requests made to NCP Brazil and which are being disregarded by the rapporteur of this Specific Instance.
In order to comply with the "principles of transparency and publicity", which are constitutional foundations of Public Administration, I request that the IWG-NCP send me the "reasons" for this collegiate's decision, containing the "reasons" for having (or not) taken into account my "arguments" found in my manifestation, and the "reasons" for the NCP Brazil to be urged (or not) by the IWG-NCP to fulfill its role in this Specific Instance.
Finally, I also request that, only after this decision (and the eventual measures of the NCP Brazil), the Final Statement be completed and published as a mirror and, in this way, can completely reflect everything that, in fact, was manifested (and proven) by the Submitter and the Respondent.
I place myself, from now on, at the disposal of the IWG-NCP.
Best Regards
Douglas Linares Flinto
Submitter of Specific Instance nº 04/2020
and Founder & CEO of the Brazilian Business Ethics Institute
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
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)
Former Coninv-CAMEX Brazil (until December/2022)
Former IWG-NCP Brazil (until December/2022)
NCP Brazil (The Host NCP)
NCP Italy (The Support NCP)
Subject: NCP Brazil (Specific Instance nº 04/2020)
Dear Ms. Christine Kaufmann,
In August 2022, I was called by the NCP Brazil to make suggestions in the "draft" of the Final Statement regarding the Specific Instance nº 04/2020, in which I appear as Submitter and, the Italian oil giant ENI, as Respondent.
The aforementioned document (Doc. 01) was written in an incomprehensible and disorganized manner, omitting several essential - fully proven - facts, which resulted in the decontextualization of a history of almost 22 long years, thus, privileging the Respondent. Furthermore, some of this draft's paragraphs contain untrue texts that attack my honor and reputation. As if that were not enough, the way this document was written evidences an active, arrogant, and defensive participation of the NCP Italy in favor of the Respondent, revealing a serious and questionable conflict of interest in this Specific Instance, given that the NCP Italy is part of the Italian government's "direct public administration", the Respondent's "controlling shareholder".
As a result, on October 3rd, 2022, the NCP Brazil received my manifestation (Doc. 02), which included a series of requests duly substantiated in the OECD Report (NCPs for RBC: Providing access to remedy 20 years and the road ahead); in the "OECD Implementation Procedures" (available in the OECD Guidelines for Multinational Enterprises - 2023); in the NCP Brazil - Procedure Manual for Specific Instances (7.6: After hearing the parties, the NCP Brazil may initiate or resume the mediation process at any time during the preparation of the Final Statement of a Specific Instance); in the suggestions of OECD Watch; in the guiding principles of UNGP 31 and, mainly, in the guidelines of the OECD Due Diligence Guidance for Responsible Business Conduct (guidelines that are being neglected and despised by the Respondent. And, as incredible as it may seem, these non-observances I pointed out were not listed in the draft of the Final Statement).
Despite this - and without even justifying his decision -, the rapporteur of this Specific Instance once again prioritized the Final Statement and failed to corroborate for the NCP Brazil to fulfill its role granted by the OECD to all its NCPs around the world: "Legitimate remediation mechanisms through which grievances concerning enterprise-related adverse impacts can be raised and remedy can be sought"; "Ensuring that a person affected by negative corporate impacts can obtain some form of redress for their harm", as well as "Fostering solutions in relation to issues emerging from the implementation of the Guidelines by companies and establishing themselves firmly as remedy mechanisms and offering a unique dialogue platform".
Therefore, as the OECD states: "This difficult task of the NCPs to leverage access to 'remedies' through a 'dialogue' and 'facilitation', involves a 'detailed review of the issues', 'explore creative remedy solutions', and 'make strong recommendations', as well as 'determinations' as to whether or not the Respondent observed the Guidelines. These determinations can be a 'powerful signaling tool', helping to clarify the correct application of the Guidelines for companies, and can constitute a 'remedy' for the Submitter". And, since the NCPs do not have the authority to order a company to participate in the process or undertake measures to remedy impacts, arriving at a 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".
So, on November 22nd, 2022, I invoked the Interministerial Working Group - National Contact Point (IWG-NCP) to request that this "collegiate" be able to analyze the arguments of my manifestation and the pertinence of my requests made to the NCP Brazil, which were being "disregarded" by the rapporteur of this Specific Instance. The aforementioned message was copied to the members of the National Committee of Investment (Coninv-CAMEX), the collegiate responsible for the supervision of the IWG-NCP.
Although the Final Statement was not published on the NCP Brazil's website (as I had requested), no decision on my case was taken by the IWG-NCP due to the inauguration of a new President of the Republic, which took place from January 1st, 2023. Without the respective "decrees", the members of the IWG-NCP have not been defined yet, which means that the NCP Brazil has been without any activities in all these months, therefore, they can't handle the cases that are already in progress, nor can they analyze new allegations of non-compliance with the OECD Guidelines for Multinational Enterprises, as informed by the NCP Brazil in a virtual meeting held on April 17th, 2023.
After that meeting, in early May 2023, the NCP Brazil said - in yet another evasive response to my new email - that "the case's rapporteur is on vacation and, as soon as he returns, we intend to talk to him regarding the proper routing of this Specific Instance". Note that, in July 2023, my case will complete its "third" anniversary. Despite my initial submissions and my manifestations (dated May/2022 and October/2022), does the NCP Brazil still not know which way will be given to my case after all this time? The impression that the NCP Brazil gives me is that this Specific Instance is in the hands of the rapporteur and, in my understanding, the rapporteur - who is never part of the IWG-NCP - is only an "instrument" of the NCP Brazil, who is the one responsible for the procedures, referrals, and the decision on the analyzed cases.
Now, what can the OECD and its advisory bodies do when the rapporteur of the Specific Instance nº 04/2020 doesn't corroborate for the NCP Brazil to fulfill its role: "to raise awareness and sensitize, to convince and motivate the Respondent about the need to exercise a 'due diligence' on the 'chronology of the facts' (Doc. 03) for the 'reconstruction of the events' involving the 'actions' and 'omissions' of the Respondent"? By doing that, the Respondent would be able to identify the "adverse impacts" to my disadvantage - these adverse impacts were "fully proven" by an abundant, rich, and robust supporting documentation. All this would be in accordance with the guidelines of the OECD Due Diligence Guidance for Responsible Business Conduct.
Now, what can the OECD and its advisory bodies do when the rapporteur of the Specific Instance nº 04/2020 fails to prepare a draft of the Final Statement as a mirror that completely reflects everything that was in fact manifested (and proven) by the Parties throughout the work conducted by the NCP Brazil?
Now, what can the OECD and its advisory bodies do when the Final Statement draft favors and benefits the Respondent to the detriment of the Submitter?
Now, to whom can the Submitter turn to when the NCP Brazil, besides conducting a Specific Instance directly violating the core criteria defined by the OECD (visibility, accessibility, transparency and accountability), also doesn't handle this Specific Instance in an impartial, predictable, equitable and, most importantly, compatible with the OECD Guidelines for Multinational Enterprises and the OECD Due Diligence Guidance for Responsible Business Conduct?
Now, who can help a Submitter when an NCP does not genuinely engage in procedures in line with the OECD Guidelines for Multinational Enterprises to try to obtain a "solution" to the issues presented and "fully substantiated"? Who can help a Submitter when the NCP doesn't make "recommendations" or "determinations" in the draft of the Final Statement on the grounds that the Respondent didn't observe the OECD Guidelines for Multinational Enterprises and, much less, the guidelines of the OECD Due Diligence Guidance for Responsible Business Conduct?
Now, why does the NCP Brazil not respond to my legitimate requests for information and doesn't address the specific issues raised by me in an appropriate, efficient, and timely manner, as the OECD orientates?
Now, why the NCP Brazil doesn't respect the Brazilian basic constitutional principles (such as transparency and publicity) and doesn't justify the reasons for not having taken into account my fully founded arguments in my manifestation (dated October 3rd, 2022) here attached, much less the reasons for not having accepted my requests for the NCP Brazil to fulfill its role granted by the OECD?
Would the answer to these questions be due to the inefficiency, negligence or incompetence of the NCP Brazil?
Or does the answer concern the NCP Brazil being intimidated and frightened by the posture adopted by both the Respondent and the NCP Italy during the work of this Specific Instance?
Or is the answer in the fact that NCP Brazil is acting with partiality and favors due to some conflict of interest in this Specific Instance? (It is important for the OECD to observe that the IWG-NCP is part of the Brazilian governmental structure, and that the National Committee of Investment (Coninv) is a collegiate member of the CAMEX (The Chamber of Foreign Trade), which has among its competences "the elaboration of public policy proposals, guidelines, and actions that contribute to direct foreign investment in Brazil and direct Brazilian investment abroad". The OECD also needs to note that the Respondent is the largest company in Italy and has the Italian government - a "friendly" nation and "commercial partner" of Brazil - as its "controlling shareholder").
For all the reasons presented here, I use this email to request that the OECD and its advisory bodies analyze my case through the documents here attached. After conducting a proper analyses, I request the OECD accept my suggestions listed below and take an appropriate action:
1) That the OECD call a more effective and efficient NCP without any kind of conflict of interest to carry out a "review" on the "procedures" adopted by the NCP Brazil, as well as on the "conduction" of this Specific Instance;
2) That this NCP chosen by the OECD can analyze the arguments contained in my manifestation (here attached) and the pertinence of my requests made to the NCP Brazil in order to return to Good Offices with the Respondent;
3) That this NCP chosen by the OECD can prepare a "new" Final Statement that is consistent with the "standards" required by the OECD and in accordance with everything that was manifested (and "proven") by me and the Respondent in this Specific Instance, including the "reaction" of the Respondent in relation to my manifestation sent to the NCP Brazil here attached;
4) That the OECD Watch is called to "follow" and "supervise" these revision works until the publication of the "new" Final Statement of the Specific Instance nº 04/2020 (NCP Brazil);
5) That the OECD and its advisory bodies can check the "role" of the NCP Italy in this Specific Instance, as well as the procedures adopted when I filed a complaint against the Respondent (Doc. 04) in 2015, and the respective "conclusion" of the case (Doc. 05), which is already in the OECD databaseç
6) And finally, I believe that the OECD needs to prioritize studies and analyzes for the creation of "specific guidelines" regarding whistleblowing of non-compliance with the OECD Guidelines for Multinational Enterprises when the "denounced company" has as a "controlling shareholder" an "adherent nation", thus preventing conflicts of interest. I suggest this because generally the NCPs are part of the "governmental structure" of the adherent nations. This way, the Submitters are protected from being harmed, as well as preventing them from having to endure yet another "disappointment" for not getting some kind of "reparation" for the adverse impacts suffered because of a powerful multinational company. This "remedy" will also need to at least be prescribed by means of a "trustworthy" Final Statement with the manifestations and proofs presented by the Submitters to some NCP around the world and, at the most, the necessary "reparation" in accordance with the guidelines of the OECD Due Diligence Guidance for Responsible Business Conduct.
Requesting the OECD WPRBC to kindly confirm having received this message, I immediately place myself at the disposal of the OECD, the OECD WPRBC, and its advisory bodies.
Best Regards.
Douglas Linares Flinto
Founder & CEO at Brazilian Business Ethics Institute
Submitter of Specific Instance nº 04/2020 of NCP Brazil
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)
NCPs around the world
Eni’s Stakeholders
Dear Ms. Christine Kaufmann,
I greatly appreciate your kind words, but the OECD WPRBC response (Doc. A) does not resolve the issues raised by me and, more importantly, other Submitters may continue to be harmed by other NCPs around the world, as I was harmed by the NCP Brazil (according to the facts and full proofs about the errors, disrespect, partiality and arbitrariness of the rapporteur of my case as well as the inefficiency, negligence, complacency and injustices of the NCP Brazil to my disadvantage).
Despite my messages (Doc. 01 - May 30, 2023, and Doc. 02 - June 8, 2023) sent to the OECD WPRBC, with serious facts (fully proven) about how the Specific Instance nº 04/2020 was handled by the NCP Brazil, I only have one word to express my feelings after these three long years of expectations: disappointment, including, of course, the position of the OECD WPRBC on my request for help.
Now, who can help a Submitter against actions promoted by an NCP to benefit and favor a multinational company? The response from the OECD WPRBC states that Submitters are on their own!
I also inform you that I have created a website on the domain: ENIFLIX is based on the orientation of the OECD Watch: “The Submitter also feel free to publish your own Statement Final on the case proceedings and outcome submitted to an NCP”.
Note that ENIFLIX describes the Italian oil giant's non-compliance to the “OECD Guidelines for Multinational Enterprises” and also the “essence” of my whistleblowing to the NCP Brazil: “An 'unfair dismissal' in a proven 'retaliation' imposed by the executives — including the members of the direction of Eni — which I had denounced; the lack of ‘whistleblower protection’ (in violation of the Code of Ethics), and the inclusion of my name on the ‘black list’ of the Brazilian labor market, as well as Eni's corporate strategy to conduct this case that completed 21 long years: a ‘systemic imposition of retaliations with attacks on my honor and reputation, and a victimization instrumentally architected to exempt Eni from its own responsibilities’, due to the ‘actions’ and ‘omissions’ by both Eni’s Brazilian subsidiary and Eni itself, which resulted in immeasurable 'damage' and countless 'losses' to my disadvantage, all in accordance with the facts and supporting documents presented to the NCP Brazil”.
These attitudes of Eni, totally contrary to the principles and values of “Responsible Business Conduct” (RBC) — which is the heart of the “OECD Guidelines for Multinational Enterprises” and the foundation of the “OECD Due Diligence Guidance for Responsible Business Conduct” — destroyed my professional career forever and took my retirement away from my hands. As if that were not enough, when I was unfairly fired, Eni made me “miss the chance” of living a promising career at Petrobras alongside all my honest colleagues from Eni's Brazilian subsidiary, who have been working there from 2004 to this present day.
I also inform you that this message will be published as an "article" (Open Letter to OECD WPRBC), on my LinkedIn profile.
Finally, I will continue my fight, without anyone's help, and with all the legal means at my disposal, to rescue and restore my name, my honor and my reputation that continues to be denigrated by the Italian oil giant.
Best Regards.
Douglas Linares Flinto
Founder & CEO at Brazilian Business Ethics Institute
Submitter of Specific Instance nº 04/2020 of NCP Brazil
1) Extrajudicial Process
The OECD Guide says that “the National Contact Points to the OECD Guidelines for MNEs are a State-based nonjudicial mechanism through which issues can be raised about implementation of the OECD Guidelines for MNEs in specific instances” and that the “NCP are legitimate remediation mechanisms through which grievances concerning enterprise-related adverse impacts can be raised and remedy can be sought”.
Therefore, we can conclude that a Specific Instance is an “extrajudicial process”. This affirmation is so true that my Initial Submission received a “procedural number”: “19971.100637/2020-06”.
However, even if there are procedures for conducting a Specific Instance, such as those described in the NCP Brazil Manual, as it is an "extrajudicial process", necessarily, some "principles" must be observed for serving as foundations for all and any process, whether judicial or non-judicial.
2) Adversarial and the Full Defense Principles
Among these procedural principles, it is necessary to highlight the “adversarial principle” and the “principle of full defense”, which are guaranteed in the Brazilian “higher law”: the Federal Constitution of 1988.
The adversarial principle is derived from a Latin phrase, audi alteram partem (or audiatur et altera pars), which means listening to the other side or letting the other side be heard as well.
And that is precisely what this principle guarantees: that the two Parties to a process are heard and have the same opportunities, that is, this principle must be equally applicable to the Submitter and the Respondent, which is why both must be informed of the allegations in order to be able to refute them if they wish to do so.
The principle of full defense is correlated with the adversarial principle, and it is the duty of the State, in this case, the NCP Brazil, to provide both the Submitter and the Respondent with the possibility of making the most complete defense regarding the allegations of each one of the Parties. This means that the full defense ensures that the parties have the necessary means to express themselves and even produce new proofs.
In this context, I highlight the instruments that guarantee the adversarial principle and the full defense principle, an essential right of the litigants. It is the reply and the rejoinder that fit into a procedural logic:
“In the case of NCP Brazil, the process begins with the ‘Initial Submission’ containing non-compliance with the OECD Guidelines to the disadvantage of a multinational company. Next, the Respondent exercises its right to make a ‘manifestation” to the Submitter's arguments. After that, the NCP Brazil should make room for the manifestation (reply) of the Submitter, in which they will express his or her views on the Respondent's arguments and may even produce new proofs that may be necessary. Finally, the NCP Brazil will make room for a new manifestation (rejoinder) by the Respondent so that the company can manifest itself on the Submitter's new manifestation, and may also produce new proofs”.
Unlike what happens with the reply, the Brazilian legal system does not expressly provide for the rejoinder. However, in the event of new allegations (and new proofs) being presented by the Submitter at the time of the reply, as a way of complying with the adversarial principle and the full defense principle, it will be appropriate for the Respondent to manifest itself again in the Specific Instance. Thus, although there is no legal provision, the new manifestation of the Respondent is conventionally called a rejoinder.
Therefore, the adversarial and the full defense principle derive from an even more basic principle, which is the "equality of arms" (procedural isonomy): the Submitter and the Respondent are equidistant, that is, they are on an equal footing: everything that one Party affirms the other can refute.
Finally, although conceptually different, the “adversarial principle” and the “principle of full defense” complement each other, contributing to the emergence of the “truth of the facts”. This “truth” can only appear when the “set of proofs” is sufficiently capable of “substantiating” the arguments of each of the Parties.
3) Proofs
The “production of proofs” is one of the aspects of the adversarial principle, and its purpose is to demonstrate whether the arguments presented are “real facts” or just “narratives”, that is, “arguments not supported by proofs”.
Proofs play a fundamental role in any process, including a Specific Instance. And this is because, through proofs, a “judgment of certainty” can be issued on the allegations of the Parties. So, in the legal sense, “the proof consists in the demonstration of the truth of the facts discussed in the process”.
Furthermore, all proofs have as characteristics the object (the facts they wish to prove), the purpose (the conviction about a certain allegation), the addressee (in this case, the NCP Brazil, responsible for preparing the Final Statement), and the means (the species of proofs to prove the facts, such as documentary, testimonial, expert reports, etc.).
Therefore, the "value of the proof " is an essential element for the clarification of the facts alleged in the Specific Instance, and its purpose is: to highlight the controversy of the circumstances presented by the Parties. Consequently, the “allegation of facts” and the “production of proofs” will be up to the Submitter and the Respondent. This means that “the burden of proof is preceded by the burden of allegation”.
Finally, due to the importance of the proofs for the process, it is even said that the proofs are the "heart" of the process because it is through them that the destiny of the procedural legal relationship will be defined, in this case, the "Final Statement”.
We can conclude then that against facts there are many arguments! Despite the vestiges, indications, and evidence, the facts can and must be contested to meet the adversarial and the full defense principles. However, against facts that have rich, abundant, and robust supporting documentation, there will be no arguments left! That's because duly proven facts become "irrefutable facts".
4) Irrefutable
The word “irrefutable” is an adjective that means “something that has already been proven and there is no way to prove otherwise”, that is, “something that cannot be disputed”.
The synonymous for the word irrefutable are: accomplished, certain, inarguable, incontestable, incontrovertible, indisputable, indubitable, irrefragable, positive, sure, unanswerable, unarguable, unchallengeable, undeniable, and unquestionable.
5) Causal Link
The “causal link” (or causal relationship) is the link that links the conduct of an agent, whether actions or omissions, with the result of the damage caused, thus enabling the identification of responsibilities through a line of logical and coherent reasoning, supported by duly proven facts that are sufficiently capable of “reconstructing the events” which, invariably, reside in the past.
Therefore, the Specific Instance is the way in which the Submitter reconstructs the events, presenting (and proving) the Respondent's responsibility for the damages and losses suffered.
“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”.
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”:
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:
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.
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.
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.
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.
c) Communicate how impacts are addressed
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.
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.
“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”.
“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”.
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