6. Filing a complaint at the NCP: The “Specific Instances” Procedures
The “specific instances” procedure establishes the means by which various concerned parties can engage with the relevant NCP where a particular company has failed to respect the Guidelines (see chapter 1 of this section on the content and scope of the Guidelines).
Who can file a complaint?
Any “interested party” – representatives of employers’ organisations, trade unions, NGOs and individuals – can file a complaint with an NCP if it can demonstrate it has an interest in the issues. Any individual or group of people from, for example, a village or community, or an employee, could therefore file a complaint with the NCP, either directly or through an NGO or trade union.
To which NCP should a “specific instance” be filed: home or host country?
The case should be submitted to the NCP in the country where the issues arose (if an NCP exists in that country). This practice has the benefit of encouraging a local resolution among local actors directly responsible for and/or affected by a violation. However, it also often allows parent companies and home country governments to shirk their responsibility by transferring the case to the local NCP.
NGOs have sought to highlight the issue of parent company responsibility by simultaneously filing cases before both the host and home country NCPs and calling on both NCPs to collaborate and contribute equally to resolving the case. If a case is filed simultaneously in several countries, NCPs are expected to collaborate with each other to handle the issues raised.
In 2011, in an attempt to highlight the responsibility of the Dutch agricultural company Nidera for violations of the Guidelines in Argentina, a group of Argentine and Dutch NGOs filed a case with the Dutch NCP (rather than the Argentine NCP) and emphasised the necessity of handling the complaint in the Netherlands, arguing that local violations of the OECD Guidelines were the direct result of strategic policy decisions made by the parent company at the (Dutch) headquarters level 1 . Since then, this approach has been increasingly used by complainants and it has become common practice.
NOTE TO TRADE UNIONS
A trade union wishing to file a complaint should contact either its national union and/or the relevant Global Union Federation. TUAC can also provide assistance as it has published a Trade Union Guide to the OECD Guidelines 2 wich includes a check-list for filing a complaint.
What might cause an NCP to reject a case?
Some of the reasons frequently given by NCPs for the inadmissibility of complaints are of particular note:
- The inadmissibility of a complaint based on the definition of what constitutes a multinational enterprise. 3
- Inadmissibility due to ongoing judicial proceedings in relation to the issue at hand. Despite the fact that the Guidelines state that “NCPs should not decide that issues do not merit further consideration solely because parallel proceedings have been conducted, are under way or are available to the parties concerned”, NCPs do frequently reject cases on these grounds 4 . If the NCP evaluates that it can bring a positive contribution to the issues raised (and not generate “any serious prejudice for either of the parties involved in these other proceedings or cause a contempt of court situation”), it should offer its good offices.
- One of the most common frustrations that complainants face when bringing NCP cases is the application of an unreasonably high burden of proof to reject cases. NCPs have rejected 43 of the 250 (17%) cases filed by communities, individuals and NGOs because the NCP did not consider that the complainants had provided sufficient evidence of a breach of the Guidelines. The Procedural Guidance directs NCPs to determine whether a complaint raises a bona fide issue and to consider whether the issue is “material and substantiated.” The Procedural Guidance does not define “substantiated,” which has led to widely varying interpretations by different NCPs. While many NCPs apply an interpretation that leads them to accept complaints that raise credible claims, others have used this language to require a level of certainty that is inappropriate and often impossible for complainants to meet. 5 .
- The inadmissibility of a complaint on the grounds that allegations relate to the potential impacts of a company’s planned actions (future harms) and not actual harms. This contradicts the spirit of human rights due diligence processes, which are aimed at identifying potential impacts and avoiding them before they occur 6 .
- Some NCPs reject the complaints when a company refuses to engage in mediation, effectively allowing the company to unilaterally stymie the complaint process.
FIDH, Justice for Iran (JFI) and Redress vs Italtel
In 2017, FIDH, JFI and Redress filed a complaint with the Italian OECD National Contact Point against telecom company Italtel Group S.p.A., alleging that it breached multiple principles of the OECD Guidelines in relation to its business activities in Iran. This included a Memorandum of Understanding signed by Italtel and the Telecommunications Company of Iran (“TCI”) in 2016, which risked “contributing to Internet censorship, to the suppression of a wide range of fundamental freedoms and human rights in Iran and it “equipped Iranian authorities including the Islamic Revolutionary Guard Corps (“IRGC”) in further crushing political dissent and civil liberties throughout the country and in cyberspace.” 7 The organizations asked the Italian NCP to assess the case and resolve if the actions of the company where in compliance with the OECD Guidelines, and they called for a moratorium on the negotiations. In May 2018, the Italian NCP rejected the complaint arguing, among other things, that Italtel had taken adequate steps to disable interception of the telecommunication data and that the MoU was still in negotiations and as a result “the current business relationship cannot be assessed as an actual or potential breach of the guidelines" 8 , since it had yet not been finalized as a contract. The NCP resolved that the issue was not material or sufficiently substantiated to warrant further consideration. FIDH, JFI and Redress communicated their profound disagreement since charges were substantiated and the Italian NCP had used an unreasonably high threshold criteria for admitting the complaint, preventing direct dialogue between the complainants and the company. Moreover, it was not necessary for Italtel to sign a binding contract with TCI to consider that relation as a “business relationship” under the NCP Guidelines 9 .
Process and outcome
1. Initial Assessment
The NCP will first conduct an initial examination as to whether issues raised are relevant to the implementation of the Guidelines; it then determines whether they warrant further examination and responds to the parties responsible for raising them. In making an initial assessment of whether the issue raised merits further examination, the NCP will need to determine whether the issue is bona fide and relevant to the implementation of the Guidelines. In this context, the NCP will take into account:
- "the identity of the party concerned and its interest in the matter
- whether the issue is material and substantiated.
- whether there seems to be a link between the enterprise’s activities and the issue raised in the specific instance.
- the relevance of applicable law and procedures, including court rulings.
- how similar issues have been, or are being, treated in other domestic or international proceedings.
- whether the consideration of the specific issue would contribute to the purposes and effectiveness of the Guidelines” 10
After examining the original submission, the NCP can take two courses of action: Declare the complaint inadmissible, Declare the complaint admissible or refer it to another NCP.
Declare the complaint inadmissible
Where the complaint is dismissed the NCP will inform the complainant/applicant as to the basis of the decision.
Declare the complaint admissible
In this situation the NCP should offer its good offices to the parties in an attempt to help facilitate a resolution to the issues raised.
2. Good Offices
The NCP shall then consult the parties and, where appropriate, it will:
- With the agreement of the concerned parties, offer to facilitate entry into non-adversarial and consensus-based dialogue, such as mediation or conciliation talks, to help resolve the issues of contention;
- Solicit advice from the relevant authorities and/or representatives from the business community, trade unions, NGOs and other experts (which may include either the appropriate authorities in non-adhering countries, or the management of the company in the home country); 11
- Consult, as appropriate, the NCP in the other country (or countries) concerned;
- Seek the opinion of the Investment Committee when doubts exist as to the interpretation of the Guidelines with respect to the case.
3. Final Statement
Upon the conculsion of the good offices phase, the NCP will take time to issue a public statement detailing how the process went and explaining any agreements reached or recommendations given. If the parties can reach an agreement the matter will be considered resolved.
Even if, however, no solution is found, the NCP is still obliged to issue a public statement. The NCP may also make recommendations to the parties concerned. The Procedural Guidance allows for – but does not require – NCPs to make a determination on whether the Guidelines had been violated in cases where mediation fails. 12
Under the OECD Guidelines’ Procedural Guidance, Government authorities, TUAC, BIAC and OECD Watch have the right to request that the Investment Committee issue a clarification of a particular clause or term in the OECD Guidelines if there is a dispute about the applicability of the Guidelines by an NCP, for example when the NCP’s decision to dismiss the case is based on a flawed interpretation of the Guidelines or when the NCP has failed to follow the Procedural Guidance in its dismissal.
The Duration of the Procedure
The Guidelines set out an indicative time frame on how long the different stages in the examination of a case should last 13 . According to the Guidelines, the process should last for approximately 12 months. In many instances it has taken many times that long (even simply to decide on the admissibility of the case).
The Confidentiality of Proceedings
According to the Procedural Guidance, transparency is a core operating principle of NCPs. However, in facilitating resolution of the issues raised, the NCP will take the necessary steps to ensure that both the business’ and other parties’ sensitive material remains confidential. 14 While the good offices period is under way, the confidentiality of the proceedings will be maintained. Following receipt of a complaint, any information or documentation received or exchanged between parties cannot normally be disclosed.
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 both parties agree to their disclosure.
After consultation with the parties involved, the NCP will make publicly available the results of these procedures “unless preserving confidentiality would be in the best interests of effective implementation of the Guidelines.” 15 The publication of the results of inquiries varies according to the NCP. Some NCPs publish this information on their websites. Whilst some NCPs prefer not to divulge the name of companies involved in their reviews, others consider that such information need not remain confidential once the procedure has been completed. NCPs are required to publish their final statements.
The confidentiality of the procedure remains an issue that is hotly debated. Many companies insist that the confidentiality rules be extended to all phases of the procedure (thus also including the initial filing of the complaint). They specifically contend that campaign or other statements made by complainants during the proceedings can represent violations of good faith toward the complaint process. Many companies The companies are of the view that the confidentiality of proceedings facilitates the mediation process. 16 On the other hand, publicity can be a useful means of applying pressure on companies to engage in the voluntary process, helping ensure that the Guidelines are more effectively applied. 17
The Guidelines’ commentaries require that a balance be struck between confidentiality and transparency, while clearly asserting transparency, not confidentialy, as a core criteria for NCPs. 18 Whilst they stipulate that the good offices procedures will normally remain confidential, the commentaries do not state that information of a secondary nature, such as the status of proceedings, cannot be disclosed. 19 OECD Watch has produced guidance for (potential) complainants as to how to navigate the transparency versus confidentiality issue during specific instance procedures. 20
Follow-up on the case
Though not all NCPs do so, the best performing NCPs develop concrete monitoring and follow-up procedures to ensure implementation by MNES of the recommendations given to them in final statements or the commitments agreed to in joint statements resulting from NCP processes. NCPs such as the Dutch, UK, Norwegian and French generally require complainants and companies to report back on implementation of the recommendations/ agreements three months and/or one year after the closure of the case. 21
The NCPs perform mainly a role of conciliation and mediation, the quality of which tends to vary considerably between them. The NCP’s findings are not legally enforcable and their endeavours reflect an approach that is non-contentious in respect of alleged violations. As non-judicial organs, they cannot grant financial compensation to complainants, nor impose pecuniary sanctions on companies. Although they lack the capacity to enforce their decisions, the mere fact that the NCP’s conclusions are out in the public domain can have an influence on the conduct of the parties. Civil society organisations regret that the 2011 update failed to sufficiently establish states duties to protect Human Rights in cases of violations of the Guidelines. The main role of the NCP remains to reach a mediated outcome.
Indeed, while NCPs lack ability to apply sanctions or demand remedy, they can assist in providing remedy through different means: Issuing determinations of breach; Encouraging companies to consider voluntarily providing remedy (including in the form of compensation, clean of up of damage, avoidance of a harmful future investment, etc.); and Recommending that other government ministries apply financial consequences or some sort of sanctions (e.g penalties, withdrawal from export credit programs or overseas investment guarantees) for companies that refuse to engage at all or engage in poor faith in the process or fail to implement recommendations made.
NCPs and financial consequences
In April 2015, the final statement of the Canadian NCP regarding a specific instance filed by the Canada Tibet Committee resulted in the withdrawal of the Canadian government’s Trade Commissioner Services and/or Export Development Canada (EDC) financial services for the company China Gold International Resources for its operations in the Gyama Valley. The decision was taken following the company’s refusal to cooperate with the NCP. 25 The Dutch government has also pledged to ensure that consequences (such as barring companies from receiving export credits, participating in trade missions, and other forms of state support) are attached to a company’s non-compliance with the Guidelines. <
The NCPs in action in corporate-related Human Rights abuses
Lawyers for Palestinian Human Rights vs. G4s 26
G4S and its Israeli subsidiaries provide, install, and maintain equipment that is used in military checkpoints in the Annexion Wall. The complaint alleges that G4S contributed to serious Human Rights abuses, including the detention and imprisonment of children in Israeli prison facilities, during which many allege being subject to torture and/or cruel and degrading treatment.
LPHR requests that G4S provide information about where and how its equipment is used and what due diligence checks have been conducted in providing it. The complaint also asks G4S to stop servicing the equipment, remove it, agree to an independent audit of these actions, and agree to identify ways to compensate the people who have suffered adverse impacts.
LPHR is represented by the London-based law firm Leigh Day.
On 22 May 2014, the NCP accepted the case; however, it rejected allegations relating to G4S’s obligations to avoid causing or contributing to adverse Human Rights impacts and to conduct Human Rights due diligence.
The NCP offered the parties mediation, but G4S declined the offer, claiming it was legally bound to keep information relevant to the case confidentiality, and because it felt that LPHR did not have a mandate to negotiate and resolve the issues. Given this situation, the NCP informed the parties on 8 July 2014 that it would proceed to the next phase of the complaint process and conduct a further examination of the allegations in the complaint. To be noted, not all NCPs would proceed with the complaint if a company refuses to engage.
In March 2015, the NCP issued its final statement, finding that G4S’s actions “are not consistent with its obligation under Chapter IV, Paragraph 3 of the OECD Guidelines to address impacts it is linked to by a business relationship.” As a result of this breach, the UK NCP found that G4S is also technically in breach of other Guidelines provisions related to respect for Human Rights, but that the company had not failed to respect Human Rights in regard to its own operations.
Egbema Voice of Freedom, Aggah Community, Advocates for Community Alternatives, and Chima Williams & Associates and FIDH vs ENI
In December 2017, Egbema Voice of Freedom (EVF), an association of residents of Aggah Community in Rivers State, Nigeria, and its representatives, Advocates for Community Alternatives (ACA) and Chima Williams & Associates (CWA), filed a complaint against ENI S.p.A and its Dutch subsidiary Eni International BV in front the Italian and Dutch NCPs, with the support of the International Federation for Human Rights (FIDH). 27
ENI has drilled for oil in and around the town of Aggah since the 1960s. As a result of the elevated roadways, embankments and platforms built by the company, the community has suffered for five decades from violent annual flooding of large swathes of farmland and residential areas. The complainants stressed the devastating impacts on the health, property, livelihoods and environment of the Aggah community as a result of the flooding, including 90% of households who have lost agricultural products and over 65% who have suffered severe health problems, which represent a violation of the OECD Guidelines 28 .
The Italian NCP accepted the complaint in July 2018 and opened a mediation procedure between the parties in the presence of a third-party Conciliator. This mediation process led to an agreement between the parties in July 2019, which was made public three months after. The terms of settlement provided “for the urgent construction of new culverts/drainage channels and maintenance and management of the existing ones to avoid flooding,” and it indicated “the verification of the impact of those measures in the presence of a technical expert, to determine whether further action should be taken.” 29 This agreement is ground-breaking , since successful cases for victims before NCPs are extremely rare, and “is the result of a relentless and joint effort by the community, advocates and NGOs to get the company to act", as Giacomo Cremonesi (FIDH representative in the procedure before the Italian NCP) highlighted 30 . While Eni has already conducted engineering surveys to design a new drainage system through Aggah, the work was suspended due to the COVID-19 crisis. Representatives of the complainants continue to monitor the implementation of the agreement and insist on a transparent and inclusive process to ensure that a sustainable solution to the flooding is found.
Former Employees vs Heineken
The complaint was filed in December 2015 by former employees of a Heinken submisidiary in the DRC, who alleged unlawful dismissals by the subsidiary, Bralima. They filed a complaint to the Dutch NCP regarding a series of alleged unfair and unlawful dismissals between 1999-2003 as a civil war raged in the easter DRC. The complainants accused Bralima of having caused massive and abusive retrenchment of workers. Secondly, they pointed out a miscalculation and non-payment of the final settlement for some workers. Ultimately, the former workers contended “that Heineken Headquartered in the Netherlands at the time of the dismissal closely collaborated with Bralima and therefore had or ought to have kad knowledge of the situation” 31 . They believe Heinken should have used its influence to prevent further damage for the employees.
The Dutch NCP mediated dialogue between the parties to help clarify the responsibility of Bralima towards its former employees in DRC as well as to determine the responsibility of Heinkein under the OECD Guidelines for Multinational Enterprises towards its subsidiary. Both parties agreed on having recourse to an independent mediator. The first mediation meeting took place in Uganda at the Dutch Embassy in January 2017 while the second mediation took place at the Dutch Embassy located in Paris.
In August 2017, the Dutch NCP issued its final statement announcing that the two parties had reached a positive agreement, whose content was asked to be kept confidential but satisfied both parties. According to a newspaper article published the same day by Olivier Van Beemen in NCR.NL, a payment of 1.1 million Euros was provided to former Heineken employers 32 . Furthermore, the Dutch NCP recommended Heineken closely evaluate and monitor current and former employee complaints while continuing to monitor and improve its due diligence protocol.
This is one of the only OECD Guideline Cases that have achieved compensation for complainants. This ground-breaking case sets a historic precedent for future cases. During a panel discussion at the 6th annual UN Forum on Business and Human Rights, in Geneva, Switzerland, representatives of OECD Watch, Heineken, the Dutch NCP, and victims from the Democratic Republic of Congo (DRC) discussed the key success factors for remedy in this case, which included: No statute of limitations for filing complaints at the Dutch NCP; Acknowledgement by the Dutch NCP that remedy is the reason for the NCP system, the Independent, multi-stakeholder structure of the Dutch NCP; Determinations and consequences for non-engagement in the part of companies established by the Dutch NCP incentivize constructive participation by companies; Accessibility is maximized by conducting local fact-finding and mediation, translating documents, and covering complainants’ travel costs; The Dutch NCP operated transparently and did not apply overly strict confidentiality restrictions, so media attention helped the case 33 .
For other examples of cases, please refer to the table at the end of this chapter.