Grievance mechanism are defined by the UN Guiding Principles on Business and Human Rights (UNGPs) as “any routinized, 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.” Commentary to Guiding Principle 25 notes that state based judicial or non-judicial grievance mechanism (NJGM) should form the foundation of a wider system of remedy that includes operational level mechanism and enhanced by collaborative and regional and international human rights mechanisms.
A NJGM (‘dispute’, ‘complaints’ and ‘accountability’ mechanism) is a formal, non-legal complaint process that can be used by individuals, workers, communities and/or civil society organisations that are being negatively affected by certain business activities and operations (SOMO’s Human Rights & Grievance Mechanisms).
International human rights law requires an effective remedy where an individual’s rights or freedoms have been violated. The legal source of the right to a remedy is dependent upon the origin of the right violated (e.g. a violation of the International Covenant on Civil and Political Rights (ICCPR), Article 6, the right to life, is subject to the ICCPR, Article 2(3), the right to an effective remedy). The UN OHCHR FAQ on UN Guiding Principles on Business and Human Rights notes that:
“Remediation and remedy refer to both the processes of providing remedy for an adverse human rights impact and the substantive outcomes that can counteract, or make good, the adverse impact. These outcomes may take a range of forms, such as apologies, restitution, rehabilitation, financial or non-financial compensation, and punitive sanctions (whether criminal or administrative, such as fines), as well as the prevention of harm through, for example, injunctions or guarantees of non-repetition.”+ Read more
UNGP 27 states that both State and non-State based NJGM can play “an essential role in complementing and supplementing judicial mechanisms” and can contribute to faster, potentially more effective and direct remedy for victims. They are therefore an important addition to judicial mechanisms, which even where effective and well-resourced, may be time-consuming and costly. Moreover, there are many situations where claimants may not favour a judicial approach, and therefore may benefit from NJGMs. NJGMs can be adjudicative- assess compliance with set standards, or dialogue-based-play a mediation role (Commentary to GP 28) and their outcomes are often varied and do not necessarily result in remedy.
UNGP 31 sets out eight “effectiveness criteria” for non-judicial grievance mechanisms. Mechanisms should be: legitimate, accessible, predictable, equitable, transparent, rights-compatible, based on dialogue and engagement, and a source of continuous learning. While these criteria mostly relate to the quality of processes, they also include an important requirement that outcomes should be in line with internationally-recognized human rights.
The UNGPs identify:
- State-based NJGM (GP 27 and Commentary), such as administrative, legislative and other non-judicial mechanisms administered by a branch or agency of the State, or by an independent body on a statutory or constitutional basis. Examples include:
- National Human Rights Institutions (NHRIs), which are institutions created in national law with broad mandates relating to the protection and promotion of human rights within their respective jurisdictions and in line with the Paris Principles. There are different models of NHRIs including commissions and ombudspersons. In addition, some NHRIs have quasi-judicial functions and thus the power to order remedies. An example is the Uganda Human Rights Commission that has an established tribunal. The Commission is established by Uganda’s 1995 Constitution and operationalised under the Uganda Human Rights Act, 1997. The Commission is empowered under the Constitution to order legal remedies or redress, which is the basis for the establishment of the Tribunal. In the conduct of matters, the Tribunal applies reduced legal technicalities to the extent that this does not compromise the principles of natural justice and to facilitate expeditious conclusion of matters. In 2016, the Tribunal heard and concluded 139 matters. (UHRC 19th Annual Report, 2016)
- Ombudsperson offices e.g. Equality Ombudsman, Sweden– which receives and examines complaints of harassment and discrimination including in the workplace and works towards preventing discrimination.
- Government-run complaints mechanisms such as those established within certain government functions for example, labour, consumer protection, etc.;
- National Contact Points (NCPs) under the OECD Guidelines for Multinational Enterprises. Government-backed NCPs are mandated to help stakeholders find a resolution in cases of alleged non-observance of the OECD Guidelines for Multinational Enterprises consistent in a manner that is impartial, predictable, equitable and compatible with the principles and standards of the OECD Guidelines for Multinational Enterprises. NCPs have a wide-reaching scope for they can receive complaints regarding global activities of any corporation headquartered in or operating from an OECD member or adhering country. NCPs vary in practice which contributes to uneven performance. NCPs, are in many cases are the only available grievance mechanisms though they have also been criticised as lacking in effectiveness (OECD Watch, Remedy Remains Rare).
- Non-State based NJGMs (GP 28, GP 29 and GP30) are further differentiated between those “administered by a business enterprise alone or with stakeholders or through a mutually acceptable external expert or body usually referred to as operational-level grievance mechanisms, or those administered by an industry association or a multi-stakeholder group”. Operational grievance mechanisms play two key roles: identifying human rights impacts as part of ongoing human rights due diligence; and dealing with grievances early thus preventing them from escalating and compounding (Commentary to GP 29). , It is Important however, that such mechanisms should not preclude access to judicial or other state-based processes, or undermine the role of legitimate trade unions. They are rather meant to help to identify problems early, before they escalate, and provide solutions that offer remedy to anyone impacted.
- Non-State-based grievance mechanisms offered by regional and international human rights treaties. These ‘treaty bodies’ as they are called, are in essence committees comprising of independent experts elected by state parties to the treaty. They monitor the implementation by states of the rights set forth in the treaties and decide on complaints brought against those States. These bodies have traditionally dealt human rights violations by state parties but some have also dealt with and are increasingly willing to deal with state failure to protect against abuses by third parties including business. A notable example is the 1996 case brought before the African Commission on Human and Peoples Rights against the government of Nigeria by the Social and Economic Rights Centre (SERAC) and the Centre for Economic and Social Rights. The complainants’ case was that the government which, was also a shareholder in a consortium with Shell, had facilitated the exploitation of oil in Ogoni region without regard for the health and environment contrary to the African Charter on Human and Peoples Rights. The Commission issued a decision in 2001, in which it found the Nigerian government in violation of the Charter and appealed to it ensure protection of the environment, health and livelihood of the people of Ogoniland.
Of increasing importance are grievance mechanisms offered by the International Financial Institutions (IFIs) (e.g. World Bank’s Inspection Panel, International Finance Corporation’s Compliance Advisor’s Office, European Bank for Reconstruction and Development’s Project Complaints Mechanism), which offer opportunities to raise concerns about investments around the globe for which they provide funding. These mechanisms which are both adjudicative (compliance assessment) and mediatory (dispute-resolution), are important given the immunity enjoyed by IFIs which would otherwise leave victims with no avenue for redress. A positive aspect is that IFIs require or encourage the establishment of project or company level grievance mechanisms but remedies in practice or police are not guaranteed.
Aware of the challenges faced by victims in cases where businesses are involved in human rights violations, the UN Office for the High Commissioner for Human Rights in 2014 launched the Accountability and Remedy project with ‘a view to contribute to a fairer and more effective system of domestic law remedies in cases of business involvement in severe human rights abuses.’ Part II of the initiative focuses on state-based non-judicial mechanisms and aims to “identify and analyse lessons learned, best practices, challenges and possibilities to improve the effectiveness of State-based non-judicial mechanisms that are relevant for the respect by business enterprises for human rights, including in a cross-border context”.
Non-judicial grievance mechanisms relate to the following Sustainable Development Goal
- SOMO, Human Rights & Grievance Mechanisms – website:
- Step-By-Step Guide to Filing a Complaint with a Grievance Mechanism
- FIDH, “Corporate Accountability for Human Rights Abuses: A Guide for Victims and NGOs on Recourse Mechanisms“, 3rd Edition, 2016
- OHCHR, Accountability and Remedy Project
- Access Facility Platform
- Database of the existing grievance mechanisms
- Sophie Chao, The Roundtable on Sustainable Palm Oil (RSPO) and complaint resolution: Guidance on submitting a complaint for civil society organisations and local communities, 2013
- Business and Human Rights Resource Centre: Non-Judicial Grievance Mechanisms
- SOMO, The Patchwork of Non-Judicial Grievance Mechanisms, Addressing the limitations of the current landscape, SOMO Paper, November 2014
- Rights-Compatible Grievance Mechanisms: A Guidance Tool for Companies and Their Stakeholders, Harvard Kennedy School, CSR Initiative, CRI Working Paper No. 41, January 2008
- C. Rees, Grievance Mechanisms for Business and Human Rights: Strengths, Weaknesses, and Gaps, Harvard Kennedy School, CSR Initiative, CRI Working Paper No. 40, January 2008
- C. Rees, Mediation in Business-Related Human Rights Disputes: Objections, Opportunities and Challenges, Harvard Kennedy School, CSR Initiative, CRI Working Paper No. 56, February 2010
- D. Kovick and C. Rees, International Support for Effective Dispute Resolution Between Companies and Their Stakeholders: Assessing Needs, Interests, and Models, Harvard Kennedy School, CSR Initiative, CRI Working Paper No. 63, June 2011
- Effective company-level grievance mechanisms: multi-stakeholder perspectives and examples from practice. Report on the panel session organized at the 2015 UN Forum on Business and Human Rights by ACCESS Facility in cooperation with UN Global Compact. Monday, 16 November 2015
- 2012 UN Forum on Business and Human Rights: Access to Non-Judicial Remedy – Part 1 & Part 2
- E. Wilson and E. Blackmore (editors). Dispute or dialogue? Community perspectives on company-led grievance mechanisms. International Institute for Environment and Development, London 2013
International grievance mechanisms:
- World Bank’s Inspection Panel
- International Finance Corporation/Multilateral Investment Guarantee Agency’s Compliance Advisor Ombudsman
- OECD Guidelines for Multinational Enterprises
- International Labour Organization’s Committee on Freedom of Association
- African Commission on Human and Peoples’ Rights – Special Mechanisms
- African Development Bank’s Independent Review Mechanism
- Asian Development Bank’s Accountability Mechanism
- Inter-American Development Bank’s Independent Consultation and Investigation Mechanism
- European Bank for Reconstruction and Development’s Project Complaint Mechanism
- European Investment Bank’s Complaints Mechanism
What National Action Plans say on Non-judicial grievance mechanisms
Action point 1
Develop a toolkit for companies and organizations on human rights
This point presents the action of developing, in collaboration with experts and its main human rights stakeholders and organizations, a toolbox that will help companies prevent human rights violations and promote the respect for human rights through their activities. This “Toolbox” will be composed of different elements including how companies can create grievance mechanisms.
Action point 2
Prepare a brochure on grievance mechanisms related to public authority
This point states that the federal government will engage in a research mission to list all of the different state-based mechanisms (both judicial and non-judicial) that can be used in cases of human rights violations by companies or organizations (Belgian or foreign). The NAP explains that “it is the duty of the authorities to ensure effective remedies for the victims of human rights violations by companies and organizations. This is through appropriate judicial, administrative, legislative or other means. ..Reparation can take place in a variety of ways, ranging from public apologies to penalties (criminal or administrative), including compensation, rehabilitation, financial and non-financial compensation, and prevention of violations, for example through injunctions or guarantees of non-recurrence. Reparation procedures must be neutral, protected against corruption and free from political or other attempts to influence the outcome. The NAP further comments that in Belgium “various legal procedures (both judicial and extra-judicial procedures and grievance mechanisms) form the basis of the grievance system. Mediation procedures can be accessed through the OECD NCP, and different provisions included in the criminal law can be imposed through the Belgian courts, etc. However, many of these grievance mechanisms are insufficiently known about. The federal government will engage in a research mission to list all of the different state-based mechanisms (both judicial and non-judicial) that can be used in cases of human rights violations by companies or organizations (Belgian or foreign).
Action point 16
Promote social reporting, including human rights
The mentions that in the “Baromètre RSE 2011” (see Action point 18), it was discovered that the theme of human rights was the third most important challenge identified by companies, while only 28% had a code of conduct that addressed human rights, merely 25% had grievance mechanisms for collecting complaints about human rights violations, and barely 9% had a human rights audit system.
Pillar 1: The State Duty to Protect Human Rights
Strand 2: Dialogue
Action point 2.4 (pages 34-35)
The Ministry of Energy, through the Division of Participation and Dialogue, will promote the creation of formal and stable opportunities for dialogue between businesses and communities in areas where they expect to install energy projects. To ensure the effectiveness of these spaces, the “Guide for Participation Standards in the Development of Energy Projects” will be available to promote the existence of public sector mechanisms aimed at decreasing existing asymmetries between the parties, such as a registry of advisors and facilitators for communities to access; a symmetry fund to finance the advisors and facilitators; a complaints mechanisms regarding compliance with agreements that forwards complaints to the authorities; and alternative dispute resolution mechanisms to resolve any disagreements that may arise in the dialogue process. Efficiency criteria set out in Guiding Principle No. 31 will be included in the design of the complaint mechanism.
Pillar 2: The Corporate Responsibility to Respect Human Rights
What does the Government expect from business enterprises? (page 51)
- That they create operational mechanisms for remedy allowing them to identify potential impacts and establish remedial actions in case this happens.
Pillar 3: Access to Redress Mechanisms
Strand 2: State-Based Non-Judicial Mechanisms (pages 59-62)
In line with Principle 27 of the Guiding Principles, States must develop effective and appropriate non-judicial grievance mechanisms, at the same time as judicial mechanisms, as an integral part of a comprehensive state system to redress the violation of human rights by business enterprises.
The State must inform the public about the existence and operation of these mechanisms, and take into consideration and act upon their recommendations. These mechanisms should also keep an open dialogue with citizens, especially with risk populations within the framework of corporate activities. It is desirable that these mechanisms are introduced, upon their mandate, at international exchanges and development for a about business and human rights; for example, they could be included in discussions with regional and global human rights institutions and in the revisions made to the progress achieved by the 2030 Agenda.
Action Point 2.1
The National Contact Point for OECD Guidelines (NCP) of the Ministry of Foreign Affairs will adopt a series of measures to strengthen its duties. For this, it will:
- Renew and strengthen the Mirror Committee, a body composed by representatives from the business community, unions, NGOs, and academia -with the support of Chile’s National Human Rights Institute (NHRI). The Committee’s main role is advising the NCP and supporting his/her work, including the dissemination and treatment of the cases he/she receives. This role will be strengthened by renewing the Committee to enhance the promotion of a Responsible Corporate Behaviour among national stakeholders
- Submit, in conjunction with the Directorate of Human Rights of the Ministry of Foreign Affairs, before the Mirror Committee of the National Contact Point, the existing relationship between the OECD Guidelines for Multilateral Enterprises and the UN Guiding Principles on Business and Human Rights.
- Prepare, in conjunction with the NHRI, an Agreement of Good Intentions with the purpose strengthening communication between both organisations, share information about potential specific situations and infringement of the Guidelines, specifically regarding the chapter on human rights, and carry out joint execution of the same in dissemination and training activities.
- Organise, in conjunction with the Directorate of Human Rights of the Ministry of Foreign Affairs, dissemination and training activities, covering both instruments, for different national stakeholders, by including the mediation/conciliation role of the National Contact Point in the resolution of disputes with multilateral enterprises. Activities include the preparation of a briefing leaflet covering the relationship between OECD Guidelines and the Guiding Principles. …
- Be voluntarily evaluated in 2017 through peer review, which will allow the country to identify the NCP’s strengths, as well as areas for improvement, thus becoming the first State in Latin America and the Caribbean to go through this kind of process.
Action Point 2.2
The Ministry of Labour will guarantee access to audit actions should labour rights be infringed, by modernising the Labour Directorate.
Action Point 2.3
The National Institute of Human Rights will:
- Introduce business and human rights standards in observation missions and reports.
- Collaborate with the OECD National Point of Contact on business and human rights related matters.
Action Point 2.4
The Superintendence of the Environment (SMA) will:
- Permanently update the National Information System for Environmental Auditing, in publicly accessible website.
- Apply diverse prioritising criteria, such as “territorial vulnerability”, which addresses institutional and geographical aspects, and “grievances”, by taking into consideration the number of grievances received from citizens and the different sectors.
- Apply criteria for prioritisation in processing and managing grievances submitted by citizens, such as “Level of seriousness of the facts reported” and “Public commotion.” The SMA has available a process for communities to raise grievances about facts that may constitute infringements falling under its competence.
- Apply the Technical Protocol for the Execution of Environmental Auditing Activities concerning Measures Associated with the Human Environment, in the auditing of measures contained in Environmental Qualification Measures Associated with the Human Environment (indigenous or non-indigenous.)
Action Point 2.5
Within the framework of the Local Development Policy of the Ministry of Energy, the following actions will be carried out:
- Promotion, in coordination with other relevant public services, and through multisectoral dialogue, the development and implementation of a grievance mechanism so that business enterprises and communities may forward to the authority their concerns about non-compliance of an agreement existing between the parties.
- Promotion of formal and permanent spaces for dialogue between business enterprises and communities, whereby potential impacts may become known and
the relevant measures may be taken. For smooth operation of these spaces for dialogue, the public sector will promote the availability of a record of advisors and facilitators to be used by communities, and a Symmetry Fund47 allowing to finance such advisors or facilitators
Action Point 2.6
Within the framework of the Energy Policy, the Local Development Policy and the Chapter on Indigenous Relevance of Energy 2050, the Ministry of Energy will promote the development of mechanisms for the resolution of disputes between communities and business enterprises within the context of the development of energy projects, will may consist in, inter alia, mediation, redress or other mechanisms that may be relevant.
Strand 3: Non-State-Based Mechanisms (page 62-63)
Non-state based redress mechanisms play an important role in the design of a holistic remedy system in the field of business and human rights, since this allow the owners of rights to look for redress actions outside or beyond the state-based system. In this regard, States must study the way to facilitate access for such non-state-based redress mechanisms to take care of violations against human rights related with business enterprises.
A category of non-state-based mechanisms are those managed by a business enterprise alone, or in conjunction with stakeholders, by an economic association, or by a multilateral group of stakeholders. This allows business enterprises and communities to develop spaces for dialogue, measurement, resolution and/or remedy, and to look for solutions within the relevant administrative structures that are culturally appropriate and compatible with human rights. When these mechanisms are developed within the framework of business and human rights, they may offer concrete advantages to resolve situation that may potentially vulnerate human rights, such as prompt access and remedy, reduced costs and/or cross-border reach.
Likewise, Principle 29 highlights the fact that business enterprises should set out or participate in effective grievance mechanisms available, at an operational level, to people and communities that may suffer from negative consequences, and so that the damage caused may be promptly and directly redressed
Action Point 3.1
The Under-Secretariat of Economy, supported by the Ministry of Foreign Affairs, will coordinate the preparation of a booklet containing guidelines about operational grievance mechanisms that may be adopted by business enterprises. It will consult, for drafting this document, with business enterprises participating in the business and human rights working group (a commitment set out in the table about the contribution of other actors, page 86.)
Strand 4: Criteria for the Effectiveness of Non-Judicial Grievance Mechanisms (page 63-64)
The Guiding Principles include criteria for non-judicial grievance mechanisms, both state-based and non-state-based aimed at ensuring their effectiveness. These mechanisms are:
- Compatibility with rights
- Source of continuous learning
- Based on dialogue and participation
Action Point 4.1
All actions contained in this Plan related with state-based non-judicial mechanisms and non-state-based mechanisms will refer to these Principles of Effectiveness for their implementation and continuous improvement
Action Point 4.2
All training and other actions included in this Plan addressing the subject of business and human rights will make special reference to non-judicial grievance mechanisms available in Chile and the principles of effectiveness.
- Action point 2.6 (p. 13):
“The Ministry of Environment, jointly with the National Authority for Environmental Permits, will strengthen the existence of respect for human rights requirements regarding the Environmental Impact Assessment of companies, and the Business Social Risk Management and Human Rights Plans.”
- Action point 3.3 (p. 14):
“The Ministry of Internal Affairs will propose the inclusion of the business and human rights issue on the agenda of the National Committee for Human Rights Defenders, Social and Community Leaders, as well as the Regional Committees for Guarantees, with the purpose of using them as meeting spaces to settle conflicts with impacts on human rights caused by the business activity.”
- Action point 3.4 (p. 14):
“Through the Comprehensive Conflict Prevention and Management System, the National Government will create agreement and social talk mechanisms between the Government and its several levels, the communities and the enterprises. The foregoing is intended to create formal dialogue areas for actors with various interests; all of that as a means to contribute to peacebuilding and respect for human rights in the territories. This action will begin its execution once the system is implemented.”
- Action point 4.1 (p. 15):
“The Government will strengthen the subscribing to these multi-actor initiatives: Guias Colombia, Swiss Ethical Committee and the Mining-Energy Committee, as well as the implementation of guides or the provided recommendations by such initiatives.”
- Action point 5.3 (p. 16):
“Promote the implementation of the United Nations Guiding Principles and other international standards on business and human rights by the trades and the enterprises part thereof, so they may adopt human rights policies. Thus, during the first year of the execution of this Plan, the Council to the President for Human Rights will convene high level meetings with the trades to determine the inclusion goals in the multi-actor initiatives and human rights performance follow-up mechanisms. These actions must be coordinated with the entities of the Working Group, especially with the Ministry of Commerce, Industry and Tourism and in cooperation with the Post-Conflict Directorate.”
- Action point 5.6 (p. 17):
“The Ministry of Commerce, Industry and Tourism will promote the business efforts to adjust their policies to the OECD Guidelines for Multinational Enterprises, for which purposes it will assess, within six month from the execution of this Plan, its strategy to disseminate the Guidelines so as to make them widely known.”
- Action point 7.1 (p. 19):
“The Working Group, advised by the Expert Committee, will encourage discussion fora to determine the best ways for enterprises to establish easy-to-access, transparent and effective complaint and claims offices or mechanisms for prevention and mitigation and remedy of adverse human rights effects as may be caused by their activities.”
- Action point 7.6 (p. 19):
“The Working Group will tend towards enterprises, through their complaint offices, receiving and diligently managing the citizen and community claims, as considered to be affected by the adverse effects caused by their operations.”
- Action point 7.7 (p. 20):
“The Working Group, advised by the Expert Commission, will encourage companies to have follow-up strategies in place to know about the progress and follow-up to the mitigation of adverse impacts caused by the development of business activities.”
- Action point 10.1 (p. 23):
“The Council to the President for Human Rights will encourage the Ombudsman’s Office to lead the implementation of the access to remedy policies covered by this Action Plan, and to develop a specific training effort for its officers at the territorial and local levels.”
- Action point 10.2 (p. 23):
“The Working Group on Business and Human Rights, within the year of the Plan being launched, will draw a map of the current judicial and non-judicial remediation mechanisms on business and human rights in the country. Such map will identify which mechanism responds to each type of conflict, and will include a diagnostic of the efficacy and efficiency of the access to judicial and non-judicial remedy mechanisms, according to the United Nations Guiding Principles, identifying the obstacles to access to justice by the affected populations, both legally and practically.”
- Action point 10.3 (p. 23):
“Upon the Plan’s launching, the entities part of the Working Group, supported by the Ombudsman’s Office will provide advice on access to the current judicial and non-judicial remediation mechanisms in the country, through its communication channels with citizens. Once completed the mechanism map, the collected information therein is to guide the assistance provided to citizens.”
- Action Point XI is dedicated to non-judicial grievance mechanisims:
- Action point 11.1 (p. 24):
“As regards the non-judicial remedy, the mechanism mapping referred to in 10.2 above will define the ways to access to each mechanism; the encountered obstacles; the relation between mechanisms; the affected institutions, individuals and communities; as well as the current research, mediation, facilitation, negotiation and arbitration options.”
- Action point 11.2 (p. 24):
“The Working Group will develop strategies to disseminate the most relevant and appropriate business and human rights extrajudicial mechanisms.”
- Action point 11.3 (p. 24):
“The Ministry of Commerce, Industry and Tourism, within the six months of the Plan’s launching, will submit to the Consultation Committee of the National Point of Contact, an analysis of its dissemination strategy regarding the National Point of Contact and will establish the improvement it may deem fit to guarantee access to such point as for conflicts over which it may have jurisdiction.”
- Action point 11.4 (p. 24):
“The Ministry of Labor and the Public Employment Services will continue to support the talks among workers, unions, enterprises and government for negotiation, as well as the employment mediation and agreement through the mechanisms defined for such purpose.”
- Action point 11.5 (p. 24):
“The Working Group and the Council to the President for Human Rights, supported by the Ombudsman’s Office, will encourage and provide access to mediators and facilitators for the resolution of conflicts as may arise between communities and enterprises, notwithstanding that there may be other pending administrative or judicial processes.”
- Action point 11.1 (p. 24):
Pillar III [page 41-43]
“It is incumbent on states to protect human rights. This duty includes the provision of efficient and effective means of remedy for those whose rights have been infringed. Article 36 of the Charter of Fundamental Rights and Freedoms provides that: “Anyone may claim, in the prescribed manner, their rights in an independent and impartial court and, where so provided, before another authority .“The third pillar of the National Action Plan is designed to ensure that, in the field of business and human rights, this right is genuinely available to everyone without unnecessary obstruction, and that it results in efficient remedies.
That is not to say that the third pillar is simply a framework for the improved functioning of the courts. Extrajudicial remedies are also attainable. The third pillar also includes quasi-judicial tribunals, dispute resolution authorities, informal ombudsman-type institutions and mediation institutions (such as the National Contact Point, a Government-devised neutral platform to hear complaints about infringements of the OECD Guidelines for Multinational Enterprises). Ultimately, the ideal dispute is one that never arises in the first place. The third pillar also includes the means to prevent disputes at the businesses themselves. …
Extrajudicial state resources: Other state bodies may also provide means of redress. These include both subsequent and preventive means.
Provisional protection permits various activities that may constitute a risk, in particular industrial operations with a major impact on the surrounding area. The public is entitled to participate in these proceedings. Arrangements must be in place so that public engagement is not complicated and so that the public is informed in plain language and in a readily accessible. On the other hand, this engagement must not be exploited for obstruction or to make proceedings longer and more expensive than they need to be.
In proceedings on offences, authorities tend to provide subsequent protection – if there is a breach of the law, an authority may, ex officio or on a proposal, order a remedy and, where appropriate, impose penalties. It is imperative for authorities to be steadfast in identifying and prosecuting breaches of the law and for the penalties to be effective and enforceable.
Ultimately, authorities may deal with several types of dispute. As a rule, such proceedings are faster and less formal than judicial proceedings. Dispute resolution by an authority should really be selected only in those areas where this makes sense in view of the nature of the dispute. The decision must subsequently be reviewable by a court.
Extrajudicial non-state resources: The Czech Republic acknowledges the benefits and advantages of alternative dispute resolution. Alternative dispute resolution is often faster, cheaper, less formal and more accessible to the parties. As the parties to a dispute are apt to accept an amicable solution better than an authoritative ruling, the Czech Republic welcomes and supports the development of alternative dispute resolution platforms among non-state entities, especially consumer organisations, trade unions and industrial associations. Nevertheless, no means of alternative dispute resolution must restrict access to an ordinary court. This means that arrangements must always be in place to ensure that both parties have decided on alternative resolution knowingly and voluntarily, except in situations where participation in an extrajudicial solution is required directly by the law. Under no circumstances, however, is the protection of the weaker party (e.g. the consumer) allowed to be violated.
Nonetheless, it should be remembered, first and foremost, that the ideal situation is one where no dispute occurs at all. When an action is brought before a court, this is not the start of the dispute, but the final step after previous attempts to reach a settlement have failed. The businesses themselves should offer a formalised mechanism for the amicable settlement of disputes. The dispute resolution instruments offered by the state should be geared towards prevention and actively assist in the search for an amicable solution.”
2. The state duty to protect human rights
2.3 Actions taken
Companies owned or controlled by the state [page 13]
“The Danish Government believes that public authorities, including companies owned or controlled by the state, should live up to the same requirements that private companies are expected to fulfill. Therefore, the non-judicial remedy mechanism can also examine complaints involving public authorities (GP 4).”
4. Access to remedy
4.1 UNGPs on access to remedy [page 19]
As part of their duty to protect against business-related human rights abuse, States must take appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, that when such abuses occur within their territory and/or jurisdiction those affected have access to effective remedy (GP 25).
This includes providing effective and appropriate judicial and non-judicial grievance mechanisms, alongside judicial mechanisms, as part of a comprehensive State-based system for the remedy of business-related human rights abuse.
In order to ensure their effectiveness, non-judicial grievance mechanisms, both State based and non-State-based, should be:
a) Legitimate: enabling trust from the stakeholder groups for whose use they are intended, and being accountable for the fair conduct of grievance processes;
b) Accessible: being known to all stakeholder groups for whose use they are intended, and providing adequate assistance for those who may face particular barriers to access;
c) Predictable: providing a clear and known procedure with an indicative timeframe for each stage, and clarity on the types of process and outcome available and means of monitoring implementation;
d) Equitable: seeking to ensure that aggrieved parties have reasonable access to sources of information, advice and expertise necessary to engage in a grievance process on fair, informed and respectful terms;
e) Transparent: keeping parties to a grievance informed about its progress, and providing sufficient information about the mechanism’s performance to build confidence in its effectiveness and meet any public interest at stake;
f) Rights-compatible: ensuring that outcomes and remedies accord with internationally recognized human rights;
g) A source of continuous learning: drawing on relevant measures to identify lessons for improving the mechanism and preventing future grievances and harms;
The effectiveness criteria in the UNGPs largely coincide with those recommended in the OECD guidelines for the national contact points, which also stress visibility and accountability.
4.2 Recommendations from the Council for CSR on access to judicial and nonjudicial remedy [page 20]
“In November 2010, the Council for CSR established a working group who would be able to work intensively on the recommendations for implementing remedy as described in the UN Protect, Respect, and Remedy-framework. The working group was composed by a representative from the Confederation of Danish Industry, the Danish Confederation of Trade Unions, the Danish 92 Group, the Danish Shipowners’ Association and the chair of the Council.
The working group followed closely the final work of the SRSG John Ruggie on the development of the Guiding Principles for the implementation of the Protect, Respect and Remedy framework as well as the work of the OECD Investment Committee on the revision of the OECD guidelines for multinational enterprises. …”
Recommendations on non-judicial remedy
“The Council recommended that a Danish non-judicial mediation and grievance mechanism for responsible business conduct should be based on the OECD Guidelines on Responsible Business Conduct, which incorporate the UN’s recommendations on business and human rights. The mechanism should also be established in accordance with the UN and OECD criteria for non-judicial mediation and grievance mechanisms, including legitimacy, accessibility, transparency and predictability. Furthermore, the Council’s recommendations included the following unique features:
- The institution should be established by Danish law;
- The institution should be able to take up cases on its own initiative;
- The institution should be able to handle cases involving not only private companies but also public authorities and private organisation, like NGO’s;
- The company which is subject to a complaint should be given a period of two months to solve the conflict with the complainant without the involvement of the national institution.
The recommendations on non-judicial remedy from the Council for CSR was for the most part implemented by the Danish Government (see section 4.4).
The recommendations from the council on a Danish mediation and grievance mechanism can be found here: http://www.csrcouncil.dk/documents”
4.3 Actions taken [page 20-21]
Access to non-judicial remedy
“In the second national action plan for CSR from March 2012, the Danish Government announced the establishment of a Mediation and Complaints-Handling Institution for Responsible Business Conduct. The institution was established by Danish law, which was passed through parliament and approved on June 12, 2012. The Danish Government wanted to ensure that a non-judicial remedy has a maximum of legitimacy and authority. The purpose of the institution is to investigate cases involving potential adverse impacts by Danish companies on international CSR guidelines as described in the OECD Guidelines for Multinational Enterprises. The mediation and complaints-handling institution is established in accordance with the international effectiveness criteria for non-judicial mediation and grievance mechanisms as described in the UNGPs and the OECD Guidelines for Multinational Enterprises (GP 31). The institution will base its assessments on the OECD Guidelines for Multinational Enterprises, which incorporate the UN Guiding Principles on Business and Human Rights, including in particular the due diligence concept as described in the UN Guiding Principles, when looking at a complaint.
The institution focuses on mediation to solve complaints – both on company level and if that is not possible, assisted by the Mediation and Complaints-Handling Institution. If mediation is not possible, the institution can initiate an investigation of the matter and based on the result, make a public statement. The institution can examine complaints involving not only Danish private companies but also public authorities and private organisation, like NGO’s. It can also take up cases on its own initiative, which will allow the institution to be proactive in cases of substantive importance. As a first step in the case handling procedure the institution gives the company two months to solve the conflict with the complainant without the involvement of the institution itself. If the company does not solve the matter on its own, the institution undertakes an initial assessment and based on the result the institution can offer mediation or investigation. The institution which has existed since November 1st, 2012 is composed of five members – one chairman, one expert and three members appointed on the recommendation of the following organisations; Confederations of Danish Industries, the Danish Confederation of Trade Unions and the Danish 92 Group which is an association of 23 different Danish NGO’s. For more information on the member of the institution see: www.businessconduct.dk.
The institution is also working to promote the respect for the OECD Guidelines and the knowledge of the institution. So far the promotional activities have included among other:
- Homepage in Danish and English; www.businessconduct.dk;
- Survey among Danish companies on the knowledge of the institution and of the OECD Guidelines in order to be able to measure the progress in the coming years;
- Information leaflet in Danish, English, French and Spanish; the leaflet has been distributed through 112 Danish embassies for audiences abroad;
- Translation of the OECD Guidelines for Multinational Enterprises into Danish;
- Briefings, presentations and dialogue with interest groups, NGOs, etc. in order to raise awareness of the institution and the OECD guidelines for multinational enterprises and the UN Guiding Principles;
- Development of guidance on due diligence in the supply chain and company-based conflict resolution;
- Instruction for Danish Embassies encouraging them to raise awareness about the Danish National Contact Point to local stakeholders.
Other examples of non-judicial institutions which contribute to remedy for victims of business-related human rights abuses, include Employment Tribunals, national Ombudsman, and Consumer tribunal. Furthermore, Denmark has mechanisms for dealing with cases of race, gender, disability, age, religious discrimination in employment or services, etc.”
Appendix 2, GP 29
Access to remedy [page 35]
“To make it possible for grievances to be addressed early and remediated directly, business enterprises should establish or participate in effective operational-level grievance mechanisms for individuals and communities who may be adversely impacted.”
Initiatives taken or planned as a dedicated measure to implement the UNGPs [page 35]
“The state-based grievance mechanism includes the operational-level as part of its complaintshandling process. When a complaint is approved for further consideration, the Mediation and
Grievance Mechanism for Responsible Business Conduct encourages the parties (petitioner and respondent) to resolve the matter themselves. This serves to create the basis for a dialogue between the parties. If the parties succeed in resolving the matter on their own, the Institution has no further involvement. The parties must simply notify the Mediation and Complaints-Handling Institution for Responsible Business Conduct within three months from submission of the complaint to indicate whether or not they have found a solution. Matters resolved between the parties are not subject to any form of publication by the Institution.”
Appendix 2, GP 31
Access to remedy [page 35]
Effectiveness criteria for non-judicial grievance mechanisms
In order to ensure their effectiveness, non-judicial grievance mechanisms, both State based and non-State-based, should be:
g) A source of continuous learning:
Operational-level mechanisms should also be:
h) Based on engagement and dialogue:
Status in Denmark (initiatives implemented before the UN ratification of the Guiding Principles) [page 36]
The Danish Mediation and Complaint Handling Institution has been established in accordance with the international criteria for non-judicial mediation and grievance mechanisms (UNGPs) as well as the criteria for national contact points as stated in the OECD Guidelines for Multinational Enterprises (Visibility, Accessibility, Transparency, Accountability):
a) To ensure legitimacy the institution has been established in Danish law
b) Anyone can submit a complaint to the Mediation and Complaints-Handling Institution
c) A description of the complaint handling procedure has been made public along with an indicative timeframe for each step in the process
d) The chairman shall assist the weaker party that may require special support, but also assist companies, for example, so that the chairman can help to conclude a case quickly and in a way that also takes the company’s situation into account. The Mediation and Complaints Handling Institution for Responsible Business Conduct may allocate advisers to one or both
parties. The purpose is to ensure that the mediation outcome is in the interests of both parties.
e) The institution will inform the public of the cases the institution is handling. For every step in the case handling the institution will make a statement which will be made publicly available on the institution’s website. Information from a case is subject to the access to information act once the case has been concluded. Finally, the Institution will prepare an annual report that is published and also discussed with the Council forCorporate Social Responsibility and the OECD’s Investment Committee, in order to improve the work of the Institution.
f) The purpose of the institution is to help solve conflicts in accordance with the OECD Guidelines for Multinational Enterprises.
g) In addition to considering concrete incidences of infringement, the Mediation and ComplaintsHandling Institution also has the object of promoting the implementation of the OECD Guidelines for Multinational Enterprises, and compliance by Danish companies, authorities and organisations. The Mediation and Complaints-Handling Institution will also conduct activities that support the CSR efforts of Danish companies, authorities and organisations, for example as guidance in relation to the consideration of concrete cases, or in information and education activities. The institution will also work with other national contact points and the OECD Investment Committee in terms of concrete complaint handling as well as promotional activities.
h) Dialogue and mediation play a central role in the complaint handling.
4 Access of victims of human rights violations to legal remedies [page 30-31]
“Companies are encouraged to increasingly use non-binding complaint mechanisms related to human rights and to cooperate with non-governmental organisations.”
4.1 Development of the OECD National Contact Point
“The OECD Guidelines include a monitoring mechanism referred to as the National Contact Points (NCPs), which are established by governments adhering to the Guidelines. NCPs promote the Guidelines and implement them.
The primary objective of the OECD procedure is to promote the resolution of conflicts between the parties. The NCP´s task is to act as a mediator in this process. Where necessary, in addition to the mediation duty, the NCP will make a statement on whether the company in question followed the OECD Guidelines. The statement of the NCP is not a legal remedy in the sense of obliging a company to change its operations or in the sense of resulting in potential compensation or other types of reimbursement for activities in violation of the guidelines.
The NCP in Finland is the Ministry of Employment and the Economy together with the Committee on Corporate Social Responsibility. The Committee states, by request of the Ministry, whether it sees that a company has followed the Guidelines. Finnish NCP’s procedures are described in more detail in the background memo and online15.
As a follow-up measure, the working group proposes that
- alternatives for the development of the NCP be mapped out. In the meantime, the procedures of the NCP shall be clarified and communications shall be made on them.
Principal responsible party: Ministry of Employment and the Economy, schedule before the end of 2015.”
In Part III, sections 2.1 to 2.4, the NAP describes non-judicial mechanisms available at the international level, namely:
The French NCP (section 2.1, p61-62): (see OECD NCP section)
The ILO’s monitoring mechanisms (section 2.2, p62-63: The NAP describes the ILO’s mechanisms and procedures to monitor the application of ILO Conventions (p62), namely the Committee of Experts on the Application of Conventions and Recommendations and the Conference Committee on the Application of Standards, and representations or complaints regarding the application of ratified Conventions and complaints in the framework of the Committee on Freedom of Association.
The Optional Protocol to the ICESCR (section 2.3, p64): The NAP describes the Communications procedure established by the Optional Protocol, and indicates that it will allow to “make the implementation of economic, social and cultural rights more effective and encourage States to implement them” and to “clarify States’ human rights obligations by contributing to the adoption of positive measures and access to justice at the national level”.
The Revised European Social Charter (section 2.4, p64-65): The NAP describes the history and scope of the Charter, as well as the European Committee of Social Rights’ mechanisms of collective complaints and national reports.
- Part I, Proposed Actions n°15 regarding the French NCP: (see OECD NCP section)
- Part I, Proposed Actions n°16, Actions to be implemented, p62:
“- Ensure the application of core labor standards in France and support their universal application by encouraging the establishment of more binding mechanisms for States within the ILO.
– Support, in particular, the discussions on the social cohesion of economic, financial and commercial policies which should lead to strengthening the weight and authority of the ILO within multilateral institutions as well as to introduce forms of social conditionality.”
There is no mention of non-judicial grievance mechanisms in the Business and Human Rights Chapter of the Georgian Human Rights NAP.
III. Federal Government expectations regarding corporate due diligence in respecting human rights
Grievance mechanism [page 11-12]
“For the early identification of (actual or potential) adverse impacts, enterprises should either establish their own grievance procedures or play an active part in external procedures. Such procedures may, for example, be established by sectoral associations. The mechanism should be structured to match the target group. Accordingly, the target group should be consulted when the procedure is being devised. When new mechanisms are established as well as when existing mechanisms are used, care should be taken to ensure that they provide a fair, balanced and predictable procedure which is accessible to all those who might be affected (for instance by eliminating linguistic or technical barriers). As an extra measure, consideration should be given to the creation of offices with which complaints can be lodged anonymously.
The procedure should provide for maximum transparency for all stakeholders and should comply with international human rights standards. Existing complaints offices within an enterprise or its environment should be screened for compliance with the criteria defined above.
The grievance mechanism of each enterprise and its whole process of corporate due diligence should be subjected to regular practice-based reviews to assess their effectiveness.”
IV. Key areas for action [page 13]
“In relation to the three pillars of the UN Guiding Principles, the following are the primary areas for action: …
- access to grievance and remedy mechanisms.”
1.1 Basic rules of economic policy
Measures [page 20]
- “The requirements set out in the UN Guiding Principles and in the National Action Plan, in particular in its chapter III, on due diligence with regard to human rights, also apply to the organisations that implement development policy, including bodies that provide financing for development. They also serve as a basis for further assessment and monitoring and, where appropriate, further development of the grievance procedures that state implementing organisations, including financing bodies, have already established.”
1.3 State support
Export credits, investment guarantees and other instruments for the promotion of external trade
Measures [page 25]
- “The National Contact Points for the OECD Guidelines (see subsection 4.2 below) will be upgraded to become the central grievance mechanism for external trade promotion projects.”
4.1 Access to justice and the courts for injured parties
Support for remedy mechanisms in third countries [page 37-38]
With regard to potential human rights violations within supply chains, great importance attaches to reinforcement of the rule of law and democracy in the relevant third countries, because that will create conditions for the introduction of effective redress mechanisms in those countries.
One contribution to the achievement of this objective is made by the German Foundation for International Legal Cooperation (IRZ), which was established by the Federal Government in 1992. … Alternative means of dispute settlement such as arbitration tribunals and mediation also feature in the work of the IRZ.”
- “There are already enterprises that give their own employees and outsiders the opportunity to report potential or actual violations of human rights in the framework of in-house or industry-wide grievance procedures. The Federal Government will highlight best practices in future and promote the adoption of such mechanisms.”
4.2 National Contact Point for the OECD Guidelines [page 39-40]
“The National Contact Point (NCP) for the OECD Guidelines for Multinational Enterprises has been operating ever since 2001 as an extrajudicial grievance mechanism. It is based at the Federal Ministry for Economic Affairs and Energy and has a remit to disseminate information about the OECD Guidelines, to raise awareness and to promote compliance with them. The NCP also helps to resolve problems arising in connection with the implementation of the Guidelines. To this end it examines incoming complaints and, if a complaint falls within its responsibility, offers to mediate between the parties. Among other things, the NCP is responsible for complaints of insufficient respect for human rights and of insufficient consideration for human rights in the exercise of companies’ due diligence as defined in the OECD Guidelines. In their revised version of 2011, containing specific recommendations relating to the respect for human rights by companies, the OECD Guidelines are based explicitly on the UN Guiding Principles on Business and Human Rights. This means that the grievance mechanism for which the OECD Guidelines provide serves the implementation of the UN Guiding Principles on Business and Human Rights.
The NCP takes its decisions in consultation with the Interministerial Steering Group on the OECD Guidelines and with the “OECD Guidelines” Working Group. The Interministerial Steering Group comprises representatives of the Federal Foreign Office, the Federal Ministry of Labour and Social Affairs, the Federal Ministry of Food and Agriculture, the Federal Ministry of Finance, the Federal Ministry of Justice and Consumer Protection, the Federal Ministry for the Environment, Nature Conservation, Building and Nuclear Safety and the Federal Ministry for Economic Cooperation and Development. The decisions of the NCP are taken in coordination with this Interministerial Steering Group. Besides the aforementioned government ministries, the members of the Working Group also include representatives of the German Global Compact Network, business associations, trade unions and non-governmental organisations. The Working Group provides a forum for discussion about current issues relating to the Guidelines. Its members are also kept informed of the receipt and outcome of complaints. Explanatory notes on the grievance procedure, (including information on complaints received and their processing), are accessible online on the website of the Federal Ministry for Economic Affairs and Energy and were revised jointly with the Working Group in 2014.
In the context of the German G7 presidency, the Federal Government in 2015 advocated for the strengthening of mechanisms providing access to remedies in the event of human rights violations. To this end, the G7 encouraged the OECD to promote peer reviews of National Contact Points. The German NCP will undergo a peer review in the second quarter of 2017.
- “In future, the German NCP will raise awareness of the OECD Guidelines, promote compliance with them and raise the profile of the NCP and of its special role as an effective extrajudicial grievance mechanism in implementing the UN Guiding Principles on Business and Human Rights. It is being reorganised and further strengthened. To this end a new organisational entity will be created within the Federal Ministry for Economic Affairs and Energy. In addition, the number of staff in the NCP will be increased.”
Section 3: Actions
II. Initial priorities for the Business and Human Rights Implementation Group [page 19]
“xiv. Introduce a standing agenda item to explore international best practice and principles governing the development of operational level grievance mechanisms for individuals and communities who may be adversely impacted to make it possible for grievances to be addressed early and remediated directly.
Annex 1 – List of additional and ongoing actions to be carried out across Government
Domestic Framework [page 20]
“3. Facilitate mediation where appropriate in the OECD National Contact Point grievance procedures for cases arising under the OECD Multinational Guidelines following the publication of national procedures to give effect to the Guidelines.”
Section 2: Current legislative and Regulatory Framework
Data Protection [page 14]
“Owing to the significant number of multinational tech companies based in Ireland, Ireland’s data Protection Commissioner has responsibility for oversight of a large amount of data and has been involved in some high profile cases.”
II. Background and Context
A. Introduction [page 6]
The UN Guiding Principles (in line with the Framework) rest on three pillars:
3) ACCESS TO REMEDY: The need to guarantee greater access to an independent and effective remedy in case of human rights abuse, both at judicial and non-judicial level;
IV. Government Responses: Current activities and future commitments
B. Operational Principles
Ensuring Policy Coherence
GP 27 [page 28]:
As far as Non-judicial remedies are concerned, an important role is played by the specific instances offered by the Italian National Contact Point. As requested by the OECD Guidelines, the OECD NCP manages the “specific instances” through a non-judicial mechanism where the NCP offers good offices when a stakeholder considers that a multinational enterprise has adopted behaviour not compliant with the principles and recommendation set out in the Guidelines.
Italy also supports respect for human rights within the UNEP rights-based approach to environmental protection and sustainable development. Italy has implemented Principle 10 of Rio 1992 ratifying the Aarhus Convention on Access to Information, Public Participation in Decision-Making and Access to Justice in Environmental Matters.
An Italian non-judicial grievance mechanism is the Bank and Financial Arbitrator (ABF) created in 2009 and active since 2010 through its Panels in Milan, Rome and Naples (panels are likely to be established soon in other major towns). In the course of its mandate the ABF has extended the concept of ‘customers’ to cover individuals affected by the action of an intermediary even if the parties were not bound by contract. ABF expanded its functions to deal also with pre-contractual obligations in order to protect individuals claiming that intermediaries violated the obligations of good faith – which bind the parties to adopt fair behaviour while negotiating.
- The inclusion of business-related human rights abuses in a special section among the competence of the National Human Rights Independent Institution to be established;
- Improve the visibility and the knowledge of interested parties about the existence of the NCP’s “specific instances” procedures;
- Assess, in line with the G7 “Action for Fair Production” commitments, the performance of the Italian NCP and lead by example, by carrying out an OECD Peer Review of the NCP and hosting peer learning activities;
- Continue ensuring effective implementation of the Aarhus Convention;
- The launch, also through the diplomatic and consular network and with the involvement of Italian Chambers of Commerce abroad, of an awareness raising campaign on non-judicial grievance mechanisms;
- Liaise and support the many Ombudsmen active at national and local level to raise their awareness to protect individuals against human rights abuses by business;
- The extension of the original mandate of the Financial Bank Arbitrator to include human rights-related claims of financial nature (such as mortgage and lending discrimination).
GP 31 [page 29]:
… Italy yet acknowledges the need of developing appropriate non-state based grievance mechanisms and to this purpose the Government will encourage civil society organizations, trade unions and business associations to set up and activate grievance mechanisms (such as online network and tools, corporate mechanisms, or multi-stakeholders instruments) to enable the formulation, reception, and evaluation of claims for alleged human rights abuses and the proposals of adequate remedies.
Objective 3: ensuring access to effective remedy [page 10]
A. Implemented measures
5. “Improvement of collective dispute regulation. The aims is to held discussions with social partners to determine the need for revision of provisions regulating collective bargaining and to encourage parties to establish a mechanism for settling disputes at company level.”
B. Planned measures
3. “Development of peaceful and extrajudicial/ consumer dispute resolution. The aim is to establish a more effective procedure for extrajudicial resolution of disputes, to increase the participation of social partners (consumer associations and business organisations) in the system of alternative dispute resolution and to encourage self-regulation institutions to become members of tile consumer rights protection system.”
4. “Promotion of business self-regulation. The aim is to encourage the creation of a code of conduct as well as cooperation with the subjects responsible for codes of conduct and other business entities that have taken on commitments according to the existing codes of conduct. At present there are 10 codes of business ethics.”
Part I – Rational Framework for the development, adoption and implementation of the NAP
1. International Context
1.1. United Nations (pg. 12)
…Under their terms of reference, “Protect, Respect and Remedy,” the 31 United Nations Guiding Principles on Business and Human Rights:
c. Underline the need for appropriate and effective remedies – judicial and non-judicial – for human rights violations at both State and enterprise levels (Guiding Principles 25- 31).
1.5. The Organisation for Economic Co-operation and Development (OECD) (pg. 14)
… The UN Guiding Principles have since been adapted and developed five times, most recently at the OECD’s 50th Anniversary Ministerial Meeting, on May 25, 2011. On this occasion, the OECD Guidelines for Multinational Enterprises received a specific chapter on human rights, the wording of which was aligned on the United Nations Guiding Principles on Business and Human Rights. From a human rights perspective, the 2011 revision is a fundamental step and, by opening up its scope, has particularly widened the access to remedies since currently the complaints addressed to National Contact Points (NCP) in OECD Member States cover about a quarter of violations on human rights…
… The key role of National Contact Points (NCPs) was emphasized by Ministers at the 2017 OECD Council Meeting and was reiterated at their 2018 Meeting. The G20 in July 2017 also referred to the NCP Mechanism of the OECD as a platform for non-judicial resolution of conflicts. NCPs network is currently the only government mechanism for out-of-court conflict resolution. It provides stakeholders with a platform to address grievances arising during operations carried out by companies in or from Member States. The impact and influence of this instrument goes even further if we consider that the big companies of the industrialized countries, most of them member states of the OECD, have considerable power over non-Member States through the increasingly global network of supply chains and outsourcing and, therefore, have the ability to impose their standards. It is therefore essential, as part of a process such as the PAN, to measure its full scope and the precursory role.
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.”
4. Access to Remedy [pages 40-41]:
The 27th principle concerns public non-judicial grievance mechanisms:
27. States should provide effective and appropriate non-judicial grievance mechanisms, alongside judicial mechanisms, as part of a comprehensive State-based system for the remedy of business-related human rights abuse.
Norway has a number of well-functioning institutions such as the Labour Inspection Authority, the Ombudsman for Children, the Consumer Ombudsman, the Equality and Anti-discrimination Ombudsman, the Norwegian Environment Agency and the Parliamentary Ombudsman for the Public Administration. There are also complaints mechanisms in connection with the rights of employees, children, women and men. For example, on the basis of the Environmental Information Act, the Appeals Board for Environmental Information handles appeals concerning rejected requests from private and public agencies for access to environmental information. The National Contact Point provides information on the OECD Guidelines for Multinational Enterprises and the UN Guiding Principles. The Contact Point also deals with individual cases independently of the government. In line with the Guidelines, the parties to cases that come before the Contact Point are expected to participate in good faith during the procedure.
Section 4.3 Criteria for ensuring effective non-judicial grievance mechanisms [page 42]:
The criteria are designed to ensure that those for whom the mechanism is intended are aware of it, have confidence in it and are in a position to use it. Companies that establish grievance mechanisms should familiarise themselves with the criteria and seek to satisfy them. The OECD National Contact Point Norway follows these criteria.
Pillar III: Access to remedies
Mediation in civil-, economic-, and individual labour-law [page 41]:
The National Labour Inspectorate is an authority established in order to oversee and verify the observance of labour law, in particular occupational health and safety rules and regulations. During the implementation of its tasks, the National Labour Inspectorate cooperates with trade unions, employers’ organisations, workers’ self-government authorities, workers’ councils, social labour inspections, and public employment services in the meaning of the provisions on the promotion of employment and labour market institutions and state administration authorities, particularly authorities for overseeing and inspecting working conditions, the Police, the Border Guard, customs authorities, revenue offices, and the Social Insurance Institution, as well as local self-government authorities.
4. OECD National Contact Point [page 49-50, 53]
This includes details on the complaints procedure where an individual feels that there has been non-observance of the OECD Guidelines.
Guiding Principle 2
“The Government will establish networks among Spanish companies or that the ones that operate in Spain for the promotion of: measures, procedures or internal systems that can effectively contribute to the prevention and/or mitigation of the negative consequences of business activities on human rights; as well as for the dissemination of good practices aimed to avoid these consequences, or to influence their avoidance, reduction or remedy. The establishment of procedures for internal assessment and determination of action will be promoted in a manner that avoids other negative consequences on human rights.”
“The Monitoring Commission will design and submit to the Government the adoption of an incentive system that includes both large companies and Small and Medium Enterprises (SMEs) that carry out policies in the field of human rights. These incentives may be economic, commercial, visibility and image, or other nature, to encourage companies to have policies and reliably certify that they have implemented adequate procedures at a global level according to their size and circumstances, namely:
- A public commitment to assume its responsibility to respect human rights in accordance with the provisions of the Principle no. 16;
- A process of due diligence aligned with the sectorial guides regarding the OECD (due diligence guidance), and based on the dialogue with stakeholders that allows identification, prevention, mitigation, and accountability of how they address the impact of their own activities and those that are directly related to their business relationships in accordance with the provisions of Principles no. 17 to no. 21;
- Some processes that allow to remedy all the negative consequences on human rights that have caused or contributed to provoke according to what is established in Principles no. 22, no.29, no. 30, no. 31.”
Guiding Principle 7
“The Government will participate in multilateral efforts aimed at improving the prevention, mitigation and remedy of situations in which companies are involved in serious human rights abuse.”
Guiding Principle 25
“The Government will collaborate with civil society organizations in the distribution of existing redress mechanisms available to victims of human rights abuses caused by the activity of companies.”
Guiding Principle 26
The Government will develop and provide the necessary instruments so that every citizen can have access to comprehensible information about all of the grievance mechanisms that they can use. Therefore, a map of the existing resources in terms of legal assistance will be made and publicized.
Guiding Principle 27
Among the existing extrajudicial grievance mechanisms, it is worth mentioning the Spanish National Contact Point of the OECD Guidelines for multinational companies.
Furthermore, the Labor and Social Security Inspectorate of the Ministry of Employment and Social Security can provide arbitration, conciliation and mediation services for parties affected by labor disputes, when the parties agree to this process.
In relation to human rights abuses caused by companies, if there is, or might be, a presumed irregular action by the Public Administration, any citizen can go to the Ombudsman and demand their intervention.
“The Monitoring Commission will carry out a study on the current regulatory body, the mechanisms of extrajudicial claim for the receipt of complaints and mediation along the existing parties and the possible needs expressed by them. Within one year from the approval of this Plan, and based on the recommendations derived from the aforementioned study, recommendations may be made on the extension of existing extrajudicial mechanisms or on the creation of new ones in accordance with the criteria established in Principle No. 31.”
Guiding Principle 28
“The Government will promote the development of practical guides and compile good practices on the establishment of grievance mechanisms managed by companies themselves that respect the criteria identified in Guiding Principle 31.”
Guiding Principle 30
“The Government will support the development of effective mechanisms for access to remedy in the collaborative mechanisms it participates in in accordance with the criteria identified in Guiding Principle 31.”
“The Government will publish the recommendations that are appropriate for the companies to establish or participate in the effective operational level grievance mechanisms available to the individuals affected by their negative consequences.”
3 Access to remedy [page 15-17]
Legal remedies provided by the State
“According to the UN Guiding Principles, States have an obligation to provide effective remedies when a company has committed human rights abuses. These include both judicial and non-judicial mechanisms. …
The different ombudsmen monitor compliance with human rights. Any person who feels that they or anyone else has been treated incorrectly or unfairly by a public authority or official at a central or local government authority can lodge a complaint with the Parliamentary Ombudsmen, also known as the Ombudsmen for Justice. …
The Office of the Equality Ombudsman is a government agency responsible for monitoring compliance with the Discrimination Act. The Ombudsman is to try in the first instance to induce those to whom the Act applies to comply with it voluntarily. However, the Ombudsman may also bring a court action on behalf of an individual who consents to this. Those who violate the Discrimination Act may be found liable to pay compensation for discrimination to the person discriminated against …
Furthermore, the OECD Guidelines for Multinational Enterprises provide access to remedy through the National Contact Points (NCP). … The NCP’s main task is to promote corporate compliance with the Guidelines and to help resolve problems in individual cases through dialogue and discussion.”
Companies’ own redress mechanisms
“According to the UN Guiding Principles, companies are responsible for ensuring that their operations do not infringe on human rights and, if a company has caused or contributed to adverse impacts, that it seeks to provide redress to the victim. Such redress may include apologies, financial or nonfinancial compensation or other redress agreed by the victim and the company. The situation is more complex if the company has not contributed to adverse impacts but the impacts are directly linked to its operations. In such cases, and if the company has leverage to prevent or mitigate the adverse impacts, it should exercise it.
No ready-made model exists for how a company should best organise its own grievance redress mechanism. It is for each company to assess what is appropriate on the basis of its specific circumstances. Some criteria include:
- Transparency – enables a dialogue with those affected by the company’s actions
- Negotiations and discussions with employee representatives – often provide a good foundation for effective measures in cases concerning employees
- Processes for internal whistleblowers, for follow-up on whistleblowing concerns and protection of whistleblowers
- Secure and anonymous systems for handling complaints involving people outside the company who feel that they, or others, have been or will be adversely affected by the company
To provide redress means to correct a mistake, in this context, regarding adverse impacts on someone’s human rights. It is often easier to redress adverse impacts if there are effective grievance mechanisms in the company that the victim can use so that a dialogue can be established.”
5. National Action Plan on Business and Human Rights
5.8 Pillar 3: access to remedy
5.8.1 Fundamental principle
Guiding Principle 1: general duty to protect [page 12-13]
The Federal Council acknowledges its duty to grant access to remedy to those affected by human rights abuses committed on Swiss territory and/or under Swiss jurisdiction. It believes the principal means of doing this is via the well-functioning Swiss judicial system, along with alternative, non-judicial dispute-resolution mechanisms. The Federal Council also acknowledges its responsibility to facilitate access to Swiss grievance mechanisms where business enterprises based in Switzerland are involved in human rights abuses abroad, and those affected in the host country have no appropriate access to effective remedy. A smart mix of judicial and non-judicial mechanisms will be considered.
5.8.3 Operational principles: state non-judicial grievance mechanisms
Guiding Principle 27 [page 39]
State non-judicial grievance frameworks can be an important factor in gaining remedy for human rights abuses. They enable the parties to identify solutions through dialogue, without what are often lengthy and costly court proceedings.
The federal government will employ the following policy instruments (PI) to implement Guiding Principle 27:
PI48 National Contact Point for the OECD Guidelines for Multinational Enterprises (NCP)
The states signatory to the OECD Guidelines for Multinational Enterprises are obliged to set up a non-judicial grievance mechanism in the form of an NCP. Submissions may be made to the NCP where multinational enterprises based in one of the signatory states are accused of failing to comply with the OECD Guidelines, which since their 2011 update also include a chapter on human rights.
The Swiss NCP forms part of SECO, but involves the relevant federal agencies in handling submissions, and receives advice on its strategic orientation and the application of the OECD Guidelines from the multi-stakeholder NCP Advisory Board.
The Federal Council regards the current practice of the Swiss NCP as appropriate and will continue to Operate it in its current form.
PI49 Dispute resolution support from representations abroad
In recent years, certain representations abroad have helped companies and persons affected by human rights abuses to resolve their conflicts at the negotiating table. They have done so on an ad-hoc basis, but the federal government plans during the current reporting period to examine the possibility of Swiss representations abroad providing greater and more systematic support in resolving disputes.”
5.8.4 Operational principles: non-state grievance mechanisms
Guiding Principle 31 [page 41]:
The Federal Council supports the effectiveness criteria described in Guiding Principle 31, and will endeavour to pursue all of its action to promote non-judicial and non-governmental grievance mechanisms in accordance with them. It is not planning any separate activities.
The UK 2013 NAP notes in the chapter on UK Government and access to remedy for human right abuses resulting from business activity that [page 17]:
“The UK sees its own provision of judicial remedy options as an important element in the remedy mix. Non-judicial grievance mechanisms based on engagement between the parties involved are also an important option. This can be done through an internal company grievance procedure or through arbitration, adjudication, mediation, conciliation and negotiation. Such services can be advised on or offered by independent dispute resolution companies, the Ombudsman, the Citizens’ Advice Bureau, the Government regulator in certain sectors, or the Advisory, Conciliation and Arbitration Service (ACAS).
Finally, the UK National Contact Point (NCP) considers allegations of non compliance by UK companies with the OECD Guidelines for Multinational Enterprises. The NCP will seek to mediate an agreement between the parties. But where this is not possible, a determination of whether the enterprise has acted inconsistently with the Guidelines is published and available for public dissemination. http://www.bis.gov.uk/nationalcontactpoint”
The UK 2016 Updated NAP discusses non-judicial mechanism in the section titled Access to remedy for human rights abuses resulting from business activity [page 20]:
“We also provide a number of state-based non-judicial mechanisms, including:
- The UK National Contact Point (NCP) which considers allegations of non-compliance by UK companies with the OECD Guidelines for Multinational Enterprises. The NCP seeks to mediate an agreement between the parties. But where this is not possible, a determination of whether the enterprise has acted inconsistently with the Guidelines is published and available for public dissemination.
- Equality and Human Rights Commission which monitors and promotes human rights compliance and can conduct inquiries, for example it has conducted inquiries into the meat and poultry processing and home care sectors.
- A considerable number of Ombudsman, Regulators and other Government Complaints Offices in industry sectors that have various mechanisms to hear complaints, impose sanctions and award compensation. For example the Health and Safety Executive, Financial Conduct Authority, Financial Ombudsman Service and Advertising Standards Authority.
- The Groceries Code Adjudicator is an independent adjudicator that oversees the relationship between supermarkets and their suppliers. It ensures that large supermarkets treat their direct suppliers lawfully and fairly, investigates complaints and arbitrates in disputes.
- In addition, there are independent organizations that support non-judicial grievance mechanisms in the UK. This includes internal company grievance procedures and arbitration, adjudication, mediation, conciliation and negotiation. Such services can be advised on or offered by independent dispute resolution companies, the Citizens’ Advice Bureau and the Advisory, Conciliation and Arbitration Service (ACAS).”
The UK 2016 Updated NAP on actions taken to promote access to remedy states that the Government [page 21] has:
“commissioned an independent survey of the UK provision of remedy to help our understanding of judicial and non-judicial remedies available to victims of human rights harms involving business enterprises”.
The UK 2016 Updated NAP states under Government commitments [page 22] that the government will:
“continue to ensure that the UK provides access to judicial and non-judicial remedies to victims of human rights harms linked to business activity. We will keep the UK provision of remedy under review.”
Providing Access to Remedy [page 23]
“As to remedies in the United States, the U.S. government will continue to help provide access to a grievance mechanism and the potential for remedy through its active USNCP for the OECD’s Specific Instance process and through the World Bank’s Stolen Asset Recovery Initiative.”