NL – Non-judicial grievance mechanisms, 2nd NAP

Pillar III

Access to effective remedy

“The UNGPs stipulate that a state’s obligation to protect against human rights abuses by companies includes the duty to take appropriate judicial, administrative, legislative or other steps to ensure that when such abuses occur within their territory or jurisdiction those affected have access to effective remedy. Remedy can include offering apologies, rehabilitation, compensation or sanctions as well guarantees of non-repetition of the abuse.

Among states’ obligations is an obligation to publicise information about existing mechanisms, including information on how they work and the support available to access them. The UNGPs state that a mechanism is a routinised, state-based or non-state-based, judicial or non-judicial process through which a grievance or complaint concerning business-related human rights abuse can be raised and remedy can be sought. The UNGPs distinguish between state-based mechanisms (judicial or non-judicial) and non-state-based mechanisms.

The National Baseline Assessment (NBA) concluded that several improvements are possible in terms of access to remedy. Aside from commissioning a study into the calibre of Dutch law in the light of the UNGPs, the previous NAP did not specifically deal with the right to effective remedy. The action points below therefore largely reflect the analysis (the NBA) carried out by the Netherlands Institute for Human Rights. Earlier policy evaluations were also taken into account and information was gathered during consultations about the options available for improving access to remedy in the Netherlands.

 Improved and more effective access to remedy requires an ecosystem of remedy, meaning that affected parties must have access to a variety of channels for various forms of remedy. The instruments should run in tandem, as not all violations require the same remedy. For example, legal recourse is probably the best way to deal with serious human rights violations, whereas a complaints mechanism may provide quicker and better remedy for less severe violations of labour rights. The proposed due diligence legislation will strengthen this ecosystem, creating a stronger legal basis on which to call European businesses to account regarding any violations. The due diligence legislation will also require businesses to comply with step 6: setting up a complaints mechanism. These efforts to strengthen both state-based and non-state-based mechanisms will lead to the creation of an ecosystem for remedy for affected parties.” p. 62.

Improving the provision of information to affected parties

“Ideally, human rights abuses, including violations of labour rights, should be addressed where they take place and effective remedy is offered locally. Yet in some circumstances a mechanism in the Netherlands may be the best recourse, for example if there is no effective local mechanism or if a Dutch enterprise is involved in the violation. However, victims and their representatives may not always have a clear picture of the possibilities for remedy in the Netherlands. Consultations with civil society organisations on the revision of the NAP made it clear, for example, that affected parties were not always aware of the possibility of accessing regular legal aid in cases of international liability. The government will produce an accessible digital guide describing the judicial and non-judicial remedies available to parties abroad who have been affected by Dutch companies (through their international supply chains). This guide will clearly describe the possibilities for initiating a judicial or non-judicial process and what support, such as legal aid, is available. The guide can follow Germany’s example.58 In response to consultations, the guide will where possible take account of the additional hurdles faced by marginalised groups and unequal power relationships. This will include a gender perspective.” p. 63.

ACTION POINTS PILLAR 3	Aim	Responsible party	Timeline
Improving information provision to affected parties
Develop and actively disseminate an accessible digital guide for rightsholders in several languages	Improve information on the options for access to remedy in the Netherlands.	BZ	From 2022-2023

p.64

Improving the provision of information to businesses

“Over the past few years, the government has contributed in several ways to improving the provision of information to businesses about access to remedy. The launch of the www.startmetoesorichtlijnen.nl website is an example of how businesses are informed about their responsibility to provide remedy within their due diligence processes. Likewise, government has in recent years worked closely with businesses and civil society organisations on RBC agreements. With its responsibility to inform, the Dutch National Contact Point (NCP) for the OECD Guidelines has also contributed to these efforts. A number of RBC agreements have further elaborated on access to remedy.

The Dutch Banking Sector Agreement, for example, has investigated the role of financial institutions in offering remedy, and the Sustainable Clothing and Textile Agreement has set up an independent joint complaints mechanism. At the same time many companies are still struggling with the question of how exactly to offer remedy for possible human rights violations deeper in their value chains. It is not always clear how to deal with this, especially, for example, if the business in the Netherlands is just one of the buyers of a product or raw material.’’ p. 65.

ACTION POINTS PILLAR I	Aim	Responsible party	Timeline
Improving information provision to business on remedy
Include access to remedy in the information offered by the RBC support office (see Pillar 2)	Collect and make available information on access to remedy	BZ	From September 2022
Support the WBA	Provide details of the progress made by multinational enterprises in a number of high-risk sectors on access to remedy.	BZ	2022-2026

p. 66

Strengthening complaints and dispute mechanisms

‘’The NBA concluded that dispute settlement (including the results of dispute settlement) and remedy organized by businesses themselves still receive little attention….A complaints and dispute mechanism as described in the UNGPs should, however, also be accessible to all actually or potentially injured parties outside the company….To this end the government will continue in the years ahead to encourage the establishment of complaint and dispute mechanisms as an element of access to remedy.’’ p. 67.

Access to remedy in sector-wide cooperation

‘’Establishing a collective complaints mechanism may be one form of collaboration. See Pillar 2 for more details of sector-wide cooperation. As stipulated by the UNGPs and the OECD Guidelines, businesses have an individual responsibility to establish a functioning complaints and disputes mechanism and it is the responsibility of the supervisory authority to call individual businesses to account where necessary. Businesses may find it logical to work with other companies on this obligation, as sector-wide collaboration agreements can help participating businesses set up complaints mechanisms and make them accessible.’’ p. 67.

ACTION POINTS PILLAR III	Aim	Responsible party	Timeline
Strengthening Complaints and Dispute Mechanisms
Strive in EU negotiations for incorporation into legislation of all six steps in the OECD Guidelines.	Include access to remedy (step 6 of due diligence) as an integral part of EU due diligence legislation.	All ministries involved, with BZ taking the initiative.	From 2022

Strengthening non-judicial state mechanisms

National Contact Point for OECD Guidelines (NCP)

“National Contact Point for OECD Guidelines (NCP) All countries adhering to the OECD Guidelines for Multinational Enterprises are required to set up a National Contact Point (NCP). This is already an important non-judicial state-based mechanism for remedy in the Netherlands. The Dutch NCP’s main tasks are to:

• improve businesses’ awareness and implementation of the OECD Guidelines;

• handle issues raised by individuals, civil society organisations and businesses in disputes related to the implementation of the OECD Guidelines;

• carry out cross-company studies at the government’s request.

The Ministry of Foreign Affairs’ Policy and Operations Evaluation Department (IOB) commissioned an evaluation of the NCP’s performance in 2019. The evaluation made recommendations and led to an increase in the NCP’s capacity. Compared to other NCPs internationally, the Dutch NCP is often seen as performing well. Yet consultations for this NAP indicated that stakeholders feel that participation and follow-up of recommendations could be better.

After approximately one year, the NCP is now publishing an evaluation of the implementation of recommendations made in their final statements. The consultations concluded that implementation of NCP recommendations is sometimes too limited once a process has been concluded. There is also a clear tendency by businesses not to accept the NCP’s offer of mediation after a complaint has been received. Both of these are problems for effective remedy. The government values a well-functioning NCP as one of the state-based mechanisms for access to remedy. It is therefore important to continue to reinforce the NCP and its recommendations. One way of doing this is to give the NCP’s work more weight in trade instruments. A company’s attitude to a possible NCP notification is already taken into account when considering its participation in trade missions. A balanced expansion of this practice to other instruments will encourage cooperation of business in an NCP process.” p. 70.