5. What bodies are involved in the implementation of the Guidelines?
The institutional mechanisms set up to promote respect for the Guidelines is based on two main organs: the National Contact Points (1) and the Investment Committee and the Working Party on Responsible Business Conduct (2).
In addition to these organs, the Business and Industry Advisory Committee (BIAC) (3), the Trade Union Advisory Committee to the OECD (TUAC) (4), as well as the international NGO network OECD Watch (5) play important advisory roles and are explicitly mentioned in the Guidelines.
The National contact Points
Under the Guidelines, each adhering government has the formal obligation to establish a national contact Point (NCP).
NCPs have two duties: they must ensure the promotion of the guidelines and help resolve specific instances of alleged MNE breach of the Guidelines via the “specific instances” procedure. The NCPs are encouraged to collaborate with each other when needed.
The process of examining complaints against corporations alleged to have breached the Guidelines, the so-called “specific instance” procedure, constitutes the most important competency of the NCPs with respect to multinational enterprises’ responsibilities as regards Human Rights. It allows for trade unions, affected communities and other interested parties to refer a case to the NCP in the country where a company has failed to comply with the Guidelines or – if that country does not have an NCP – to the NCP in the country where the company is headquartered (see below).
Structure of the NCPs
According to the Guidelines, States enjoy a certain degree of flexibility to determine the structure and organisation of their NCP. Their composition and organisation should enable them to operate in an impartial manner while maintaining an adequate level of accountability vis-à-vis the adhering government.
NCPs are governmental agencies organised in various forms. They may, for example, be structured around a senior official; an administrative office headed by a senior officer, or be formed through the co-operation of representatives of various public agencies. 1 The Canadian NCP is an example of an inter-ministerial structure chaired by Global Affairs Canada (GAC), with Natural Resources Canada as the vice-chair, while the Italian NCP is established solely within the Ministry of Economic Development. Furthermore, NCPs can be comprised of one or several public agencies; or they may be of a tripartite nature (formed by government, employees and companies), and might also formally include NGOs as stakeholders in their structure in what is known as a quadripartite structure. As of 2020, 19 NCPs were composed of one or more representatives from a single Ministry; 14 NCPs were composed of representatives from two or more Ministries, 9 NCPs were composed of representatives from government, business associations, trade unions and NGOs; 4 NCPs were composed of independent experts and 2 NCPs had a hybrid structure. 2
In the United kingdom, the NCP is composed of officials from the Department for Business, Innovation and Skills (BIS) and is overseen by a steering board composed of various government officials and four external members appointed from the Trades Union Congress, the Confederation of British Industry, and NGOs. 3
In the Netherlands, the NCP 4 consists of four individuals of different (non-governmental) backgrounds that operate and handle complaints independently from the government. In addition, four government representatives of various ministries have an advisory function to the independent NCP members. The Secretariat of the Dutch NCP is based at the Ministry of Foreign Affairs.
Despite the innovative nature of this mechanism, the fact that each adhering state establishes its own NCP means that the functioning, efficiency and independence of the NCPs vary considerably, and indeed remain the subject of much criticism. Certain NCPs have adopted effective practices and have demonstrated their concern to promote the principles of “responsible business conduct”, others have not. Moreover, some NCPs don’t even show in their websites the rules of procedure for complaint handling 5 . To check other indicators on the functioning, efficiency and independence of the NCPs, you can consult the OECD Watch website, which publishes a complete evaluation assessing NCPs on 40 organisational, procedural and communications key performance indicators based in the OECD Guidelines. 6
NGOs have often stressed the importance of strengthening the NCP mechanism to ensure the credibility and effectiveness of the Guidelines. By encouraging NCPs to adopt common rules and standards across the different countries, it would enable them to establish minimal criteria and guidance with regard to the specific instance procedure.
To guarantee their impartiality, NCPs’ composition should include different stakeholders, including independent experts, steering Committees or consultative Committees which could assist the NCPs in their work. The Guidelines’ Procedural Guidance for NCPs contains core criteria for NCP functional equivalence 7 such as visibility, accessibility, transparency and accountability, but civil society organisations believe it remains insufficient since it does not require NCPs to adopt an independent expert structure, a multi-stakeholder structure, or at a minimum ensure meaningful and complaint-linked engagement by a steering committee or stakeholder advisory board.
Lack of financial resources and permanent staff is a recurrent problem for most NCPs that seriously hampers their effectiveness. 8 NCPs are required to prepare an annual report to the Investment Committee that communicates both the nature and results of the NCP’s activities (including those relating to the procedures for ’specific instances’). 9 These reports are submitted to the Investment Committee in the run-up to the annual meeting of the NCPs in Paris each June. 10
Concerns related to the functioning and effectiveness of the NCPs are discussed at the end of this chapter.
The Investment Committee and the Working Party on Responsible Business Conduct
The Investment Committee
The Investment Committee was created in 2004 and is the OECD body that oversees the functioning of the Declaration on International Investment and Multinational enterprises. 11
The Investment Committee is composed of government representatives of OECD member countries, adhering countries and observers. It has been assigned five specific tasks in relation to the Guidelines: 12
- To respond to questions concerning the interpretation of the Guidelines;
- To organise consultations with civil society representatives and states not adhering to the Guidelines;
- To publish clarifications regarding the interpretation of the Guidelines to ensure uniform understanding between the different countries (noting that such clarifications may only be requested by member countries, TUAC, BIAC, and OECD Watch);
- To review the Guidelines and procedures of implementation in order to ensure their relevance and effectiveness;
- To provide reports to the OECD Council on the Guidelines.
The Investment Committee may opt to invite experts (from the OECD, other international organisations, NGOs or from academia) to examine and report on either general topics or specific issues in particular areas of concern, such as child labour or Human Rights. 13
OECD Watch believes that the Investment Committee has thus far taken an insufficiently proactive role in facilitating the effective functioning of NCPs and ensuring genuine functional equivalence among NCPs. In its 2015 report Remedy Remains Rare, OECD Watch called on the Investment Committee to do so by institutionalizing and managing a system of mandatory NCP peer reviews and initiating a process to revise the Guidelines’ Procedural Guidance to strengthen NCP structure and functioning. 14 OECD Watch is continuing this overall call in the framework of the stocktaking study on the 2011 version of the OECD Guidelines for Multinational Enterprises, carried out by the OECD Working Party on Responsible Business Conduct.
The Working Party on Responsible Business Conduct
The Working Party on Responsible Business Conduct is the subsidiary body of the OECD Investment Committee that oversees work related to the OECD Guidelines. It is an inter-governmental body inaugurated in 2013 and tasked with assisting in “furthering the effectiveness of the Guidelines, fostering NCP functional equivalence, pursuing the proactive agenda, promoting engagement with non-adhering countries, partner organisations, and stakeholders, and serving as central point of information on the Guidelines” 15 .
The Business and Industry Advisory Committee (BIAC)
The Business and Industry Advisory Committee is an independent body officially recognised by the OECD as the representative body of business and industry. 16 Composed of the main employers’ organisations of member countries of the OECD, BIAC’s mandate is to advise and counsel the business community and to make recommendations on policy matters pertaining to the OECD’s work.
The Trade Union Advisory Committee (TUAC)
The TUAC (Trade Union Advisory Committee) is an international trade union organisation with consultative status to the OECD and its Committees. It brings together 59 trade union affiliates in 34 countries and represents approximately 70 million workers. 17 As an international trade union, TUAC is the interface between trade unions and the OECD. Its main role is to hold regular consultations with the various OECD Committees and member countries, representing the position of the various trade unions affiliated to the organisation.
TUAC is the lead trade union organisation on the OECD Guidelines. It provides policy input to the work of the OECD and supports trade unions around the world to use the Guidelines. TUAC maintains a web site of trade union cases submitted under the OECD Guidelines together with key information sources.
At the annual meeting of NCPs, TUAC presents an annual report based on consultations with trade unions as to their experience of the implementation of the Guidelines. Finally, TUAC plays an important role in relation to the different trade unions of the member countries of the OECD, both advising and intervening when the causes it promotes are challenged.
OECD Watch is an international network of over 100 civil society organisations promoting corporate accountability. 18 FIDH is a member of OECD Watch. OECD Watch aims to ensure that business activity contributes to sustainable development and poverty eradication and that corporations are held accountable for their impacts around the globe. Members of OECD Watch share a common goal to improve corporate accountability mechanisms in order to achieve sustainable development and enhance the social and environmental performance of corporations worldwide.
OECD Watch is committed to the following aims:
- ensure effective access to remedy for communities, workers and individuals negatively affected by business conduct.
- Increase the effectiveness and reach of the OECD Guidelines for Multinational enterprises as a tool to ensure corporate accountability and access to remedy.
- Build capacity of civil society organisations to use the OECD Guidelines complaint mechanism to address cases of corporate misconduct.
If you are considering submitting a case before an NCP, you are encouraged to familiarise yourself with the OECD Watch website, which provides guides on submitting complaints, up-to-date information on recent complaints filed to NCPs, and current analysis on scope, gaps in, and interpretation of the Guidelines . OECD Watch is also the official representative of civil society’s views before the OECD Investment Committee and Working Party on Responsible Business Conduct. It is recommended that anyone interested in filing an OECD Guidelines complaint with an NCP get in contact with OECD Watch (firstname.lastname@example.org) before doing so.