3.5 Scope for Remedy [page 32-38]
“The consultations showed that the government has a major role to play in creating scope for remedy to implement the 3rd pillar of the Ruggie Framework, and providing information on the matter. Suggestions varied from providing more information on existing access to remedy through the embassies, to promoting complaint mechanisms at company level and encouraging dialogue between companies and communities under the leadership of an impartial mediator or facilitator. The ACCESS Facility was mentioned as an initiative that could receive support as part of the action plan.
In his commentary on the 3rd Pillar of the Principles, Professor Ruggie points out that grievance mechanisms may take various forms, but their aim will always be to counteract or make good any abuses. Remedy may include apologies, restitution, rehabilitation, financial or non-financial compensation and punitive sanctions, as well as the prevention of harm through, for example, injunctions or guarantees of non-repetition. The term grievance mechanism is used to indicate any routinised, State-based or non-State-based, judicial or non-judicial process through which grievances concerning business-related human rights abuse can be raised and remedy can be sought.
The ACCESS Facility was set up in December 2012 with a view to knowledge building and improving access to effective dispute settlement between companies and communities either in or out of court. ACCESS supports and facilitates local dispute settlement mechanisms, since it is convinced that local solutions are the most effective and sustainable, and that companies and other interested parties will only use dialogue and mediation if they have confidence in both the design and function of the relevant mechanisms. Since the government believes that the ACCESS Facility clearly provides added value, it has awarded start-up funding under the Human Rights Fund.
“In the Guiding Principles, Professor Ruggie points out that non-judicial mechanisms can contribute to faster, potentially more effective and more direct remedy for victims. They are therefore an important addition to judicial proceedings, which are often time-consuming and costly.
The National Contact Point (NCP) supports companies in putting the OECD Guidelines into practice. Where there is a difference of opinion between companies and other stakeholders on the application of the Guidelines, any party may submit a complaint to the NCP. Should the complaint be deemed admissible, the NCP may attempt to act as an impartial mediator between the parties reporting the abuse and the company in question. The NCP may be regarded as an overarching external remedy mechanism, since it is accessible to all stakeholders and is based on impartial mediation. At the end of a procedure, the NCP issues a final statement in which it describes the process and the relationship between the solution and the OECD Guidelines. Parties may reach agreement that remedy (including compensation) should be offered by the company. The NCP also issues a final statement in cases where parties fail to reach a solution. In that event, the NCP not only describes the process but also issues recommendations on the alleged breach of the OECD Guidelines, on the basis of its understanding of the facts. The purpose of these recommendations is to prevent future disputes. The NCP procedure is non-judicial. Its final statement is not an administrative law decision and there is therefore no scope for appeal.
At the request of the House of Representatives, a study was conducted into strengthening the functioning of the NCP. The Dutch NCP was compared with the NCPs in the UK, Norway and Denmark, and interviews were held with representatives of companies, trade unions and civil society organisations and government representatives involved in the work of the NCP. Specifically, the study examined whether the NCP should be authorised to carry out investigations into possible breaches of the OECD Guidelines by Dutch companies on its own volition, thus not only in response to complaints.
The people interviewed were reasonably satisfied with the functioning of the NCP. The way in which the NCPs are organised reflects each country’s specific social and economic structure. For example, the Dutch decision not to opt for civil servants, but for independent members with a firm base in society differs from the British model in which a Steering Board oversees the work of the NCP, whose members are civil servants.
There is no essential difference between the nature of the statements the various NCPs may issue in response to complaints. The Danish NCP is the only NCP entitled to carry out investigations on its own volition into the involvement of companies in abuses in international supply chains. No criteria have been laid down for starting an investigation. When asked, the Danish NCP was unable to say on what grounds it would take the initiative to launch an investigation. To date, no such investigation has been launched.
The government is not in favour of the Dutch NCP having similar, unconditional powers to carry out investigations. The people interviewed also expressed little support for this idea. The Dutch NCP may carry out additional investigations in response to complaints. If the NCP were entitled to carry out its own investigations, the business community would ultimately lose confidence in its impartiality. Moreover, if an issue were to be investigated on the NCP’s own volition, thus not in response to a complaint by an interested party, there would be no official ‘other party’ for the mediation procedure with the company in question.
It should be noted here that, in practice, the Dutch NCP already facilitates dialogue on CSR at the request of civil society organisations and/or companies, and thus not in response to a formal complaint submitted in accordance with the OECD Guidelines. The aim of those requesting facilitation is to bring about improvements, sometimes with a view to forestalling submission of an official complaint to the NCP.
Proactive investigation of possible risks in the Dutch business community’s supply chains now takes place by means of Sector Risk Analyses, as described above. Voluntary CSR agreements will be concluded with a number of sectors on the basis of these analyses. In their letter requesting advice on how effective CSR agreements can be concluded with business sectors, the Minister for Foreign Trade and Development Cooperation and the Minister of Economic Affairs asked the SER to devote explicit attention to the role the NCP could play as facilitator or dispute settlement mechanism.
In very serious situations, where a recommendation by the NCP is needed to support the social dialogue, the government will acquire scope to ask the NCP to carry out a sector-wide investigation into CSR issues. To promote a level playing field, the results will be brought to the attention of all countries that adhere to the OECD Guidelines in the OECD working group on CSR. Given the NCP’s limited capacity and the fact that the Sector Risk Analyses already ensure systematic identification of risks in Dutch sectors, such an investigation would probably be needed no more than once a year. The conditions under which the NCP may be requested to carry out these investigations will be specified in the amendments to the decree establishing the NCP, which will be submitted to the House of Representatives in the summer of 2014.
The study referred to above into the functioning of the NCP will lead to a number of other amendments to this decree. The preferred option is for the decree to put the consultations that the NCP regularly holds with civil society organisations, employers’ organisations and trade unions onto a formal footing, and indicate the issues on which the NCP should, in any event, consult its stakeholders. The Minister for Foreign Trade and Development Cooperation will submit a proposal on this subject, with explanatory notes, to the House of Representatives before the summer of 2014.
In 2014, the Netherlands will organise a conference on judicial and non-judicial grievance mechanisms, together with the ACCESS Facility.
Project on improving the accessibility and effectiveness of non-judicial grievance mechanisms
“Through the Human Rights Fund, the Netherlands is supporting SOMO’s Grievance Mechanisms and Human Rights Programme. The programme, which runs from 2012 to 2015, aims to improve the accessibility and effectiveness of non-judicial grievance mechanisms, such as the NCP and complaint procedures at company level. In September a training session was held in Jakarta for civil society organisations and trade union representatives, with the aim of equipping them more adequately with the knowledge and skills needed for these mechanisms. SOMO is also lobbying in a number of sector initiatives for stronger internal complaint mechanisms.”
Companies’ complaint mechanisms
“When a company establishes that it is the cause of or contributes to a human rights abuse, it is expected to rectify the situation and/or provide compensation. Complaint procedures at company level could prove to be an effective means to this end. The procedure should be in line with the OECD Guidelines, and based on dialogue and commitment to seeking an acceptable solution. Complainants should still have access to other judicial or non-judicial complaint procedures, including the NCP’s and the standard court system.”