The OECD Guidelines for Multinational Enterprises (MNEs) are a set of recommendations addressed by states adhering to the OECD Declaration on International Investment and Multinational Enterprises to multinational enterprises operating in or from these states. Since the 2000 revision (the latest revision was in 2011), the OECD Guidelines mandate that adhering states to set up National Contact Points (NCPs) “for undertaking promotional activities, handling enquiries and contributing to the resolution of issues that arise relating to the implementation of the Guidelines in specific instances”. By 2017, 46 NCPs had been established in 48 adhering states.
First adopted in 1976, the OECD Guidelines for MNEs provide guidance for responsible business conduct in areas such as: human rights, labour rights, environment, information disclosure, combating bribery, consumer interests, competition, taxation, and intellectual property rights. The 2011 revision of the Guidelines added a chapter on Human Rights aligned with the language of the UN Guiding Principles on Business and Human Rights (UNGPs). The UN Guiding Principles on Business and Human Rights (UNGPs) refer to the NCPs in the Commentary to Guiding Principle 25, where they are listed among State-based grievance mechanisms.
NCPs undertake promotional activity, handle enquiries, and contribute to the resolutions of issues relating to the OECD Guidelines in “specific instances”. Specific instances can be submitted by any individual or organisation regarding a business, operating in or from the territory of the adhering state, which has allegedly not observed the Guidelines. After an initial assessment to determine if the issues raised merit further consideration, the NCP will offer “good offices to help the parties involved to resolve the issues” and “facilitate access to consensual and non-adversarial means, such as conciliation or mediation, to assist the parties in dealing with the issues”. Finally, it will issue a final statement with recommendations on the implementation of the Guidelines.+ Read more
While States have flexibility in how they organise their NCP, the 2011 Guidelines state that such arrangements must allow NCPs to “operate in accordance with core criteria of visibility, accessibility, transparency and accountability to further the objective of functional equivalence”. Additionally, UN Guiding Principle 31 spells out effectiveness criteria for non-judicial grievance mechanisms which also apply to NCPs: legitimate; accessible; predictable; equitable; transparent; rights-compatible; and a source of continuous learning.
During the 2011 revision of the OECD Guidelines for MNEs, it was agreed that NCPs will engage in peer learning activities and are encouraged to carry out voluntary peer reviews. In the G7 Declaration of June 2015, the G7 leaders committed to “strengthening mechanisms for providing access to remedies including the National Contact Points (NCPs) for the OECD Guidelines for Multinational Enterprises. In order to do so, the G7 will encourage the OECD to promote peer reviews and peer learning on the functioning and performance of NCPs. We will ensure that our own NCPs are effective and lead by example.”
In its 2015 report Remedy Remains Rare, OECD Watch highlighted that “the overwhelming majority of complaints (brought before NCPs) have failed to bring an end to corporate misconduct or provide remedy for past or on-going abuses, leaving complainants in the same or worse position as they were in before they filed their complaint” and noted that many NCPs failed to respect the procedural guidance set forward in the OECD Guidelines. OECD Watch have also called on states to attach consequences on multinational enterprises that breach of the Guidelines, such as exclusion of companies from privileges such as public procurement contracts, export credit guarantees, private sector development aid etc.
In 2016, the Investment Committee and its Working Party on Responsible Business Conduct approved an Action Plan to strengthen National Contact Points for the period 2016-2018. In June 2018 the Accountability Counsel, ICAR, and OECD Watch published Advancing and Strengthening the OECD National Contact Point Peer Review Process.
Some interesting examples from NCPs include:
- The Canadian NCP highlights that there are consequences for Canadian companies if they do not participate, or do not engage in good faith, in the NCP dispute resolution process. “Consequences are withdrawal of Government of Canada trade advocacy support abroad. Further, non-participation or the lack of good faith participation will also be taken into account in the Corporate Social Responsibility-related evaluation and due diligence conducted by the Government of Canada’s financing crown corporation, Export Development Canada, in its consideration of the availability of financing or other support.” [Canada’s NCP website];
- Denmark’s NCP, the Mediation and Complaints Handling Institution for Responsible Business Conduct (MKI), is established by law and is mandated to consider cases concerning non-compliance with the OECD Guidelines of both private and public organisations;
- The Norwegian NCP is established as an independent expert advisory body, and comprises four independent experts.
The issue of OECD national contact points relate to the following Sustainable Development Goal
- OECD Guidelines for Multinational Enterprises 2011 edition.
- Responsible Business Conduct. OECD Guidelines for Multinational Enterprises portal – NCP section
- Frequently Asked Questions – National Contact Points for the OECD Guidelines For Multinational Enterprises
- OECD Guidelines for Multinational Enterprises. Responsible Business Conduct Matters (Brochure)
- The Action Plan to strengthen National Contact Points
- Database of specific instances
- List of National Contact Points
- OECD Global Forum on Responsible Business Conduct
- OECD NCPs Peer Reviews
- OECD Report: Implementing the OECD Guidelines for Multinational Enterprises: The National Contact Points from 2000 to 2015, Paris 2016
- OECD Sectoral Guidance.
- OECD Watch website (https://www.oecdwatch.org):
- Filing OECD Guidelines complaint,
- A “4×10” plan for why and how to unlock the potential of the OECD Guidelines. Marking 40 years of the OECD Guidelines, 2016
- C. Daniel, J. Wilde Ramsing, K.M.G Genovese & V. Sandjojo, Remedy Remains Rare, 2015,
- Accountability Counsel, ICAR, and OECD Watch, Advancing and Strengthening the OECD National Contact Point Peer Review Process
- Trade Union Advisory Committee to the OECD (TUAC)
- Business and Industry Advisory Committee to the OECD (BIAC) website
- Amnesty International UK, “Obstacle Course: How the UK’s National Contact Point handles human rights complaints under the OECD Guidelines for Multinational Enterprises“, 2016
- NCP Mediation Manual including the relevant texts from the OECD Guidelines as of February 2012
- S. Marshall, OECD National Contact Points. Better Navigating Conflict to Provide Remedy to Vulnerable Communities. Non-Judicial Human Rights Redress Mechanisms Project Report 16, Corporate Accountability Research, 2016
- J. Ruggie and T. Nelson, “Human Rights and the OECD Guidelines for Multinational Enterprises: Normative Innovations and Implementation Challenges.” Corporate Social Responsibility Initiative Working Paper No. 66. Cambridge, MA: John F. Kennedy School of Government, Harvard University, 2015
- J.C. Ochoa Sanchez, The Roles and Powers of the OECD National Contact Points Regarding Complaints on an Alleged Breach of the OECD Guidelines for Multinational Enterprises by a Transnational Corporation, Nordic Journal of International Law, Volume 84, Issue 1, 2015, pages 89-126
What National Action Plans say on OECD National Contact Points
Action point 4
Promote existing qualitative initiatives on human rights and social responsibility
The federal government explains that as part of the promotion of the application of the OECD Guidelines for Multinational Enterprises, the OECD NCP organized a seminar in early 2014, which highlighted the importance of the respect and promotion of human rights by companies. The Belgian NCP will organize a seminar targeting the fight against corruption for SMEs with the provision of a practical toolbox prepared in partnership with the Belgian Confederation of Enterprises and the International Chamber of Commerce and the Ministry of Justice.
Action point 8
Encourage international framework agreements
This point briefly mentions the OECD NCPs in regards to the role it played in collaboration with NGOs on the promotion of the “Accord on Fire and Building Safety in Bangladesh”. The Belgian NCP had given its recommendations to all the enterprises active in the textile industry.
Action point 9
Strengthen collaboration between public services and the various organizations active in the field of human rights and of international entrepreneurship
The NAP states that various public services, in particular the MFA and the OECD NCP, have information on the human rights situation in different countries, due to their activities (this is the case of for the NCP); the local presence of Belgian representation; contacts with local civil society (especially human rights defenders), other “external” partners sensible to human rights issues (such as the delegations of the European Union and its Member States, the local offices of the United Nations and their specialized bodies, the Council of Europe, etc.) or with representatives of like-minded countries.
The Belgian federal, Flanders and Wallonia governments will aim at gathering inputs at federal and regional levels from various stakeholders, which have information on human rights and how Belgian enterprises can avoid becoming complicit, directly or indirectly, in human rights violations. The analysis that emerges from this exercise will be transferred to the embassies and the competent services in Brussels, who will be able to rely on this input to provide more information to companies in the framework of their regular contacts with them. The NCP may, if appropriate, use the analysis to take initiatives to mitigate identified risks.
Action point 22
Encourage responsible supply chain management with a sector-wide approach
The NAP describes several tools of the OECD, which the federal government seeks to engage with through the Belgian NPC. It mentions that in 2013 the Belgian NCP initiated a series of consultations and interviews with various parties in the Belgian apparel sector; in 2014, it organized a round table discussion on non-ferrous metals; and in 2016 it held a round table with Belgian companies on the new OECD due diligence tool created for the agricultural industry. As new tools are expected for 2017 targeting other sectors, the NAP explains that the Belgian NCP will continue, through a sectoral approach, its work of informing and awareness-raising Belgian companies for a sustainable management of supply chains.
Action point 23
Strenghten the OECD National Contact Point
This point cover he engagement with NCPs in detail. The action aims at strengthening the capacity of the Belgian NCP in order for it to fulfil its missions and play a more active role in the third pillar of the UNGPs – regarding the access to remedy through non-judicial grievance mechanisms. Lastly, the NAP states that “once a procedure is introduced to the NCP concerning the activities of a Belgian company abroad, at the explicit request of the NCP and the companies concerned and under the guidance of the NCP, the Belgian Embassy in the country concerned can play a role mediation.”
Moreover, the federal government explains that strengthening the NCP “can contribute to support the different judicial or non-judicial measures in matters of respect for human rights by Belgian companies.”
Action point 27
Educate Belgian companies on the problem of corruption and strengthen Belgian commitments on this theme
This point indicates “awareness-raising of Belgian companies on the problem of corruption” as one of the main tasks to fight corruption. NCP will organize the events in collaboration with the Confederation of Belgian Enterprises and the International Chamber of Commerce.
Pillar 3: Access to Redress Mechanisms
Strand 2: State-Based Non-Judicial Mechanisms
Action Point 2.1 (pages 59-60)
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.
- Keep the Trade Offices periodically updated, both at a national and international level, as well as the Chilean Embassies abroad and future Chilean diplomats, about OECD Guidelines, through official messages, teleconferences, visits to Embassies/Regional Offices and coordination of the Chilean Diplomatic Academy.
- 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 2.3 (page 61)
The National Institute of Human Rights will: …
- Collaborate with the OECD National Point of Contact on business and human rights related matters.
The Colombian NAP refers to promoting the OECD Guidelines and observing the recommendations made by the Working Group of the OECD in Columbia (p.6). The NAP also states that the Ministry of Trade, Industry and Tourism will promote the OECD Guidelines to companies six months after the implementation of the plan (p. 17). Furthermore, in its Introduction, the NAP states that the NCP was established in 2012 in the Ministry of Trade, Industry and Tourism, through Decree 1400 of 2012. It also states in its XI Non-Judicial Mechanisms chapter in point 11.3 that following the six months of the launch of the NAP, the Ministry of Trade, Industry and Tourism will present an analysis of its OECD NCP awareness raising strategy to the Consultative Committee of the NCP. The ministry will implement the changes that it deems necessary to guarantee the NCP access to the conflicts that fall in line with its competences.
Publication and dissemination of existing documents, education and awareness-raising [page 10]
“Current state of play:
- The National Contact Point for the implementation of the OECD Guidelines for Multinational Enterprises is responsible for promoting the Guidelines and their instruments (seminars, training, promotional materials, etc.).”
Pillar III [page 41]
“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).”
2. The state duty to protect human rights
2.3 Actions taken
Protection of Human Rights through State Regulation and Policy [page 13]
“Together with more than 40 countries Denmark adheres to the OECD Declaration on International Investment and Multinational Enterprises. The OECD Guidelines for Multinational Enterprises are the only multilaterally agreed and comprehensive code of responsible business conduct that governments have committed to promoting. The Guidelines are supported by a unique implementation mechanism of National Contact Points (NCPs), agencies established by adhering governments to promote and implement the Guidelines. Denmark is one of the only countries in the world which has established the OECD National Contact Point by Danish law. The purpose is to ensure that the Danish NCP has a maximum of legitimacy and authority.”
4. Access to remedy
4.3 Actions taken
Access to non-judicial remedy [page 20-21]
“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. … So far the promotional activities have included among other:
- Instruction for Danish Embassies encouraging them to raise awareness about the Danish National contact Point to local stakeholders.”
Appendix 2, GP 31
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) … [and] will … work with other national contact points and the OECD Investment Committee in terms of concrete complaint handling as well as promotional activities.”
4 Access of victims of human rights violations to legal remedies
4.1 Development of the OECD National Contact Point [page 31]
“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.”
Part I, section 3 on activities at the OECD level (p14-15): the NAP describes the French NCP’s activities, considered as one of the most active NCPs (paragraph 2, p14), and mentions OECD Watch’s analysis of NCP performance in relation to NGO complaints in the last 15 years and its recommendations to improve NCPs (paragraph 3, p14).
Part I, section 15, textile and apparel sector (p35-36): the NAP cites the French NCP’s December 2013 report on the implementation of the OECD Guidelines in the textile and clothing sector, which followed a request from the then Minister of Trade to clarify the implications of the application of the Guiding Principles for subcontracting companies’ value chains and to provide recommendations to strengthen the implementation of the OECD Guidelines to prevent disasters such as the Rana Plaza from happening again. The report’s recommendations were disseminated broadly including at the OECD, ILO and EU level, and prompted the Italian and Belgian NCP to work on similar reports (paragraph 1, p35). The French NCP’s recommendations, which were designed following consultations with all relevant stakeholders, “is directed at all actors and provides a complete scheme of measures to be implemented to ensure control in a value chain in the textile and apparel sector”(paragraph 2, p35). The NAP indicates that the French NCP continues working towards the implementation of these recommendations and to and go beyond them, in particular with a view to harmonizing audit benchmarks and pooling supplier audits (paragraph 1, p36).
Part I, section 15, financial sector (p37-38): The NAP cites the Norwegian NCP’s decision of 27 May 2013 considering that an investor should, like companies, conduct due diligence as recommended by the OECD guidelines, which also applies to minority shareholders, and the OECD’s work on responsible conduct in the financial sector which includes the development of guidelines (paragraph 2, p37).
Part II on the corporate responsibility to respect human rights, Introduction (p40-41): The NAP cites the CSR Platform’s recommendation of March 2015, which refers to the work of the French NCP as one of the possible references for risk identification as part of due diligence processes: “(…) The work of the NCP on the textile-clothing sector could constitute one of the useful references.” (paragraph 4, p41)
Part III, section 2.1 on the French NCP (p60-62): the NAP describes the NCP’s mandate (paragraph 2, p60), composition (paragraph 3, p60), functioning (paragraph 4) and activities and publications (paragraph 1-3, p61). The section concludes by recalling the non-binding nature and lack of capacity of the NCP to force companies to respect the OECD Guidelines even in instances where the NCP has asserted a violation of such Guidelines (paragraph 4, p61).
Part I, Proposed Actions n°7, Actions to be implemented, p34:
“Capitalize on the findings of the French NCP’s report on the implementation of the OECD Guidelines in the textile and clothing sector and undertake work to promote and adapt the application of its recommendations to all sectors of activity.”(paragraph 3, p34)
Part I, section 15, textile and apparel sector, Ongoing activities (p36):
“Continue the dissemination of the NCP Report of 2 December 2013 and the follow-up on the implementation of its recommendations by the French textile and clothing sector and by large-scale distribution.”
Part III, Proposed Actions n° 15 (p61-62):
- Aware of the potential of NCPs to facilitate access to remediation and promote responsible behavior of companies and the OECD Guidelines at the global level, France advocates for the OECD to strengthen its support to NCPs to facilitate their coordination, ensure their functional equivalence, structure the information exchange and make the NCP network dynamic.
- In order for the French NCP to continue to be recognized as one of the most efficient in fulfilling its missions and responding to new solicitations, it is recommended to give it adequate means of operation for the fulfillment of its mission.
- Pursue the NCP’s commitment to support other NCPs and to participate in peer reviews, including by launching of a peer review of the French NCP.
Actions to be implemented:
- Strengthen the NCP’s structures for dialogue with civil society by optimizing activities planned for in the Rules of Procedure (annual information meeting, annual dialogue with civil society, request civil society expertise based on needs).”
There is no mention of OECD National Contact Points (NCPs) in the Business and Human Rights Chapter of the Georgian Human Rights NAP.
The German NAP includes a specific section on the National Contact Point.
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.”
4.2 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.”
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.”
IV. Government Responses: Current activities and future commitments
A. Foundational Principles [page 11]
… As to OECD, the Italian Government -through its OECD NCP-gives particular attention to due diligence and responsible supply chain management, also through multi-stakeholder initiatives …
B. Operational Principles
General State Regulatory and Policy Function
GP 3 (c, d)
Responsible Business Conduct and OECD due Diligence Practices [page 18]
With reference to the promotion of responsible business conduct, the Italian OECD NCP is committed to implement the OECD Guidelines for Multinational Enterprises by promoting them through an in-depth dialogue with businesses, trade unions, nongovernmental organizations, representatives of civil society.
Since the 2011 review of the OECD Guidelines, the NCP developed tools to make international standards operational especially for SMEs such as the “Due Diligence Guidance for SMEs” and activities for awareness raising and pilot projects involving large companies and SMEs with the aim of spurring a proactive responsible supply chain management through training, information and assistance.
Sustainable supply chain is indeed one of the main focus of the NCP action. In 2013, following the Rana Plaza collapse, the “Action Plan for Bangladesh” was launched with the involvement of Italian enterprises in the sector operating in Bangladesh. In this process, the NCP issued the “Report on responsible business conduct in the textile and garment supply chain. Recommendations of the Italian NCP on implementation of the OECD Guidelines for Multinational Enterprises”. Specific recommendations were given with regards to the adherence to the “Accord on Fire and Building Safety” and the participation to the “Rana Plaza Trust Fund” and for future action.
In this respect, the Italian Ministry for Economic Development, together with other six Ministers of EU Countries, signed the “Statement” recommending global companies to contribute generously to the Rana Plaza Donors Trust Fund, set up to compensate victims of the accident in Bangladesh. The Bangladesh case showed the need to switch from a reactive approach to a preventive approach and in this view multi-stakeholders and collective actions are favoured and supported as they are seen more effective to tackle system issues.
Such activities at national level are accompanied by active participation to the OECD proactive Agenda projects, such as the “OECD Sector Project on Responsible Supply Chains in the Textile and Garment Sector” and other EU and international initiatives. Other OECD guidance for due diligence are promoted among companies such as the “OECD-FAO Guidance for Responsible Agricultural Supply Chain” and the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict affected and High-Risk Areas.
The NCP also takes direct action, cooperating with national and international organisations such as ILO and UNICEF.
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 behavior not compliant with the principles and recommendations set out in the Guidelines …
- 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.
The Lithuanian NAP makes no reference to OECD National Contact Points (NCPs).
Part I – Rational Framework for the development, adoption and implementation of the NAP
1.5. The Organisation for Economic Co-operation and Development (OECD) (pg. 14)
…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 OECD Guidelines represent a comprehensive and global framework for the responsible management of companies, which cover all aspects including, in addition to human rights, labour law, the environment, transparency, the fight against corruption, consumer interest, competition, taxation and intellectual property. The OECD Guidelines are still the only instrument for an international approach to corporate social responsibility involving a mechanism – the NCPs network – to ensure its implementation.
The NCPs were established in 1984 and were strengthened in the revision of the Guidelines in 2000; since that date, their terms of reference have been clarified and expanded, and they have been accompanied by the establishment of a Code of Operation and Procedure (Procedural Guidance) to promote its effectiveness. The key role of 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. The NCP 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.
The Luxembourg NCP for the implementation of the OECD Guiding Principles was, at its creation, an entity coordinated by the secretariat of the Economic Committee under the supervision of the Ministry of the Economy. As such, it could be assimilated to a structure tripartite to bring together trade union representatives, employers’ representatives as well as members of the government administration. In early 2018, the Luxembourg NCP has reviewed other NCPs and, in particular, relied on best practices to codify its rules of procedure and functioning, which have been officially published on its website, as well as an ad-hoc form in order to submit a complaint under the best conditions. A similar exercise is under way with regard to the structure of the Luxembourg NCP. The latter, however, must remain neutral and independent when informing and soliciting third parties and organizations on an ad hoc basis. The Luxembourg NCP can also rely on the contribution of other departments concerned more particularly by complaints relating to non-compliance Guiding Principles since it is expected to deal with complaints with the assistance of a interdepartmental support program involving the Ministry of Finance, the Ministry of Labor and the Ministry of Foreign and European Affairs.
In concrete terms, the Luxembourg NCP carries out the following tasks with a view to promote and implement the Guiding Principles:
- management of the internet page of the Luxembourg NCP;
- securing and handling of complaints (“specific instances”) submitted to the NCP;
- responding to inquiries from the public and domestic businesses;
- participation, support and initiatives to promote events and publications in Guiding Principles to the Public and National Enterprises;
- consultation, sharing and exchange of good practices with other NCPs as well as the Secretariat of the OECD;
- drafting the annual report to the OECD Investment Committee.
3.3 Clarifying due diligence
Awareness-raising by embassies [page 24]
“The embassies bring Dutch and local entrepeneurs and civil society organisations together and are active in providing information on CSR, human rights themes, the OECD Guidelines and National Contact Point (NCP) procedures”
3.4 Transparency and reporting
Reporting [page 31]
“…it is possible to report to the NCP on companies that are insufficiently transparent for a constructive dialogue on CSR.”
3.5 Scope for Remedy [page 34-36]
“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.“
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.”
1. Global developments and CSR
Developing an International Framework for CSR [page 12]:
All OECD countries must establish National Contact Points to ensure implementation.
2. The State duty to protect human rights
2.2 The state as Adviser [page 20]:
A large number of public or officially supported institutions that work with business internationalisation provide guidance on CSR and human rights. Among them are the Foreign Service, Norad, the Ministry of Trade, Industry and Fisheries, and Innovation Norway. Norway’s OECD National Contact Point also provides information and guidance.
Norway’s OECD National Contact Point [page 20]:
As a member of the OECD, Norway is committed to promoting the OECD Guidelines for Multinational Enterprises. The Guidelines were updated and adopted at the OECD Ministerial Council Meeting in May 2011. All OECD countries must appoint a National Contact Point that in addition to promoting the Guidelines provides on request assistance in specific instances of alleged non-observance of the Guidelines. The Contact Point is not a supervisory or control body, but provides advice and facilitates access to conciliation and mediation procedures. National Contact Points are also mandated to cooperate with each other on promoting the Guidelines. Norway’s Contact Point is appointed by the Ministry of Foreign Affairs in consultation with the Ministry of Trade, Industry and Fisheries and the Ministry of Finance, from candidates proposed by the social partners (the Confederation of Norwegian Enterprise (NHO) and the Norwegian Confederation of Trade Unions (LO) and civil society (the Norwegian Forum for Environment and Development).
4. Access to remedy
4.1 State-based grievance mechanisms [page 41]:
The National Contact Point provides information on the OECD Guidelines for Multinational Enterprises and the UN Guiding Principles. 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.
Grievance Mechanisms at Company Level [page 41]:
The National Contact Point, in cooperation with enterprises that have made considerable progress in this area, can provide practical advice on the establishment of consultation and grievance mechanisms.
Criteria for Ensuring Effective Non-Judicial Grievance Mechanisms [page 43]:
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 familiarize themselves with the criteria and seek to satisfy them. The OECD National Contact Point Norway follows these criteria.
Pillar III: Access to remedies
4. OECD National Contact Point [page 49]:
One of the remedies available to victims of human rights abuses by multinational enterprises is the possibility of notifying the OECD National Contact Point (OECD NCP) about the situation. The OECD NCP’s main task is to promote and disseminate the OECD Guidelines for Multinational Enterprises and, in particular situations, conduct proceedings to resolve conflicts that may arise in the course of the implementation of these Guidelines, also with respect to human rights. (…) In Poland, the NCP was established in 1998 in the structure of the central administration (Ministry of the Treasury and then the Ministry of Economy). Since 2001, the OECD NCP has been operating within the Polish Information and Foreign Investment Agency (PAIiIZ). In June 2016, in order to unify the operation of the public administration in the field of CSR and responsible business conduct (RBC), the OECD NCP was transferred from the PAIiIZ to the Ministry of Economic Development. The website of the Ministry of Economic Development provides detailed information about the OECD Guidelines for Multinational Enterprises and OECD NCP activities (http://www.mr.gov.pl/strony/zadania/wsparcie-przedsiebiorczosci/spoleczna-odpowiedzialnosc-przedsiebiorstw-csr/krajowy-punkt-kontaktowy-oecd/).
To file a notice of infringement of the OECD Guidelines for Multinational Enterprises, one should complete the appropriate form, available on the website of the Ministry of Economic Development, in particular referring to the specific provisions of the OECD Guidelines to which the notification applies and providing a detailed description of the activities of the enterprise that caused the infringement of the OECD Guidelines in the above areas. Upon receipt of the notice, the case is subject to a detailed examination by the OECD NCP, which may refer the case to mediation if the case is accepted.
Implementation of the National Action Plan
2. Monitering [page 53]:
The monitoring of the implementation of the National Action Plan for the implementation of the UN Guiding Principles on Business and Human Rights will be carried out through: (…)
- Analysis of the annual OECD NCP report submitted to the OECD, with respect to the number of infringement notifications submitted to the OECD NCP by Notices submitted to the OECD NCP providing notification of breaches by multinational enterprises (Chapters IV and V of the OECD Guidelines for Multinational Enterprises on human rights and labour rights);
- Analysis of the annual OECD NCP report submitted to the OECD, for the number of training sessions or seminars disseminating the OECD Guidelines for Multinational Enterprises (Chapter IV on Human Rights)”.
International non-binding mechanisms and international legal framework in force in Poland in relation to business and human rights [page 55]:
Corporate responsibility for infringements of international human rights standards/norms is provided for in non-binding mechanisms. In this respect, apart from the UN Guiding Principles on Business and Human Rights, the following documents should be mentioned: The OECD Guidelines for Multinational Enterprises: rules for different areas, from employee relations, environmental issues, respect for human rights, and occupational safety, through issues of access to information, taxation, environmental protection, and due diligence in business. The OECD Guidelines contain a dispute settlement mechanism involving the possibility of submitting notifications to the OECD NCP on the infringement of the Guidelines. The OECD NCP examines the case and, provided it has grounds to do so, recommends mediation proceedings to the parties. (…)
Guiding Principle 2
“The Government will develop awareness and training actions based on the United Nations Guiding Principles on Business and Human Rights, the National Plan for Business and Human Rights, and the expectations of the State in matters of business and human rights. These actions can be organized, among others, with the National Contact Point of the OECD Guidelines for multinational companies, business associations, networks of the United Nations Global Compact, and civil society organizations. This action will be directed as a priority to those companies in which the State has participation, or to which it provides financial, diplomatic, or other support; to companies that may affect vulnerable groups; as well as to those companies that have received the endorsement of Brand Spain. The awareness actions will be directed to the personnel of the companies at different decision-making levels, including the boards of directors and governing bodies.”
Guiding Principle 3
“The National Contact Point of the “OECD Guidelines” will act as a focal point to provide information and advice on business and human rights issues.”
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.
3 Access to remedy [page 17]
Legal remedies provided by the State
“the OECD Guidelines for Multinational Enterprises provide access to remedy through the National Contact Points (NCP). All countries adhering to the OECD Guidelines are obliged to set up their own NCP to support and promote the Guidelines. Sweden’s NCP is a tripartite collaboration between the State, the business sector and employee organisations. The State is represented by several ministries at the Government Offices and the Ministry for Foreign Affairs is the convener. The business sector is represented by the Confederation of Swedish Enterprise and the Swedish Trade Federation, and employee organisations by the Swedish Trade Union Confederation, the Swedish Confederation of Professional Associations, the Confederation of Professional Employees, Unionen and IF Metall. As the Guidelines are voluntary, the NCP has no competence to issue any sanctions. 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.”
Annex: Measures taken [page 21]
The State as actor
- “Sweden spreads information and knowledge about CSR via the National Contact Point (NCP) for the OECD Guidelines for Multinational Enterprises and via public diplomacy. The NCP has handled four notifications since 2012. The NCP’s main roles are to handle notifications and promote and provide information about the OECD Guidelines for Multinational Enterprises.”
Annex: Measures planned [page 28]
How can the State support the business sector?
“The Ministry for Foreign Affairs is to examine the possibility of strengthening the Swedish National Contact Point (NCP) for the OECD Guidelines for Multinational Enterprises. The NCP’s main role is to handle notifications but it is also meant to promote and improve awareness of the OECD Guidelines for Multinational Enterprises. The NCP is also intended to increase contacts and collaboration with NCPs in non-OECD countries.”
5. National Action Plan on Business and Human Rights
5.7 Pillar 1: state duty to protect
Section 5.7.3 The State-business nexus
Guiding Principle 4 [page 24]
PI19 Human rights due diligence by the authorities in public-private development partnerships
The SDC [Swiss Agency for Development and Cooperation] also ensures that it does not enter into any public-private development partnerships with business enterprises which refuse to work with the National Contact Point for the OECD Guidelines for Multinational Enterprises.
5.8 Pillar 3: access to remedy
5.8.3 Operational principles: state non-judicial grievance mechanisms
Guiding Principle 27 [page 39]
P148 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.
The UK 2013 NAP, in the section on Actions Taken, states [page 10]:
“To give effect to the UN Guiding Principles, we have:
(iii) negotiated and agreed the OECD 2012 Common Approaches, including a requirement for Export Credit Agencies (ECAs) to take into account not only potential environmental impacts but also social impacts, which is defined to include “relevant adverse project-related human rights impacts.” The OECD 2012 Common Approaches also require ECAs to “consider any statements or reports made publicly available by their National Contact Points (NCPs) at the conclusion of a specific instance procedure under the OECD Guidelines for Multinational Enterprises.” UK Export Finance will consider any negative final NCP statements a company has received in respect of its human rights record when considering a project for export credit.”
The UK 2013 NAP states in the chapter on UK Government and access to remedy for human right abuses resulting from business activity on non-judicial remedy that [page 17]:
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 makes a reference to NCPs in the section devoted to Access to Remedy for Human Right 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.”
The UK 2016 Updated NAP states in the section Actions Taken, [page 8]:
“To give effect to the UN Guiding Principles, the Government has: (…) implemented the requirements of the OECD 2012 Common Approaches, and considered relevant adverse project-related human rights impacts in providing applicable Export Credit Agency (ECA) support through UK Export Finance (UKEF). UKEF will consider any reports made publicly available by the UK National Contact Point (NCP) in respect of the human rights record of a company when considering a project for export credit. The UK has been involved with the discussions, and negotiations, on the implementation of the OECD 2012 Common Approaches and the need to amend this, in respect of ongoing experience on project-related human rights. The UK continues to be involved in negotiations on any agreed clarifications to the OECD 2012 Common Approaches.”
The UK 2016 Updated NAP refers to NCP in the Case Study from NCP [page 23] where it provides a brief description of the World Wildlife Fund (WWF) & SOCO International Plc. case June 2014:
“WWF’s complaint alleged that SOCO’s oil exploration activities in Virunga National Park (Democratic Republic of Congo – DRC) did not contribute to sustainable development and that this conduct was prohibited under existing International agreements and DRC law. The activities specifically risked adverse impacts on the local communities, the environment and wildlife. This case had aroused considerable International media attention. The UK NCP accepted the complaint and asked both parties to take part in professional external mediation in London which resulted in an agreed joint statement. As part of the statement, SOCO agreed that they will not undertake or commission any exploratory or other drilling within Virunga National Park unless UNESCO and the DRC government agree that such activities are not incompatible with its World Heritage status. They also stated that “when we undertake human rights due diligence, the processes we adopt will be in full compliance with international norms and standards and industry best practice, including appropriate levels of community consultation and engagement on the basis of publicly available documents.” The full joint statement and NCP Final assessment published in June 2014 can be seen at: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/330392/bis- 14-967-uk-ncp-final-statement-following-agreement-reached-in-complaint-from-wwf- international-against-soco-international-plc.pdf More details on each complaint case which UK NCP have received can be found via the link to the Initial & Final assessments page which lists cases in chronological order https://www.gov.uk/government/collections/uk-national-contact-point-statements.”
Outcome 1.1: Promoting RBC Globally
New Actions [page 8]
“OECD Guidelines for Multinational Enterprises: For the first time, in 2016 the U.S. National Contact Point (USNCP) for the OECD Guidelines published an annual report and in 2017 will develop an outreach plan to continue its efforts to broaden understanding and implementation of the OECD Guidelines among business. The USNCP will help organize two workshops related to the OECD’s work.” – Implementing Department or Agency: State
Outcome 3.2: Build U.S. Government Officials’ Capacity to Support RBC
New Actions [page 19]
“RBC Training for U.S. Embassies: … U.S. embassies are already engaged in promoting and recognizing RBC via their participation in the Secretary of State’s Award for Corporate Excellence (ACE) process. They are also tasked with referring companies and others to the USNCP, as appropriate” – Implementing Department or Agency: State
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.”
Outcome 5.1: Exploring and Enhancing Platforms for Remedy
New Actions [page 23]
“Improving the Performance of the USNCP for the OECD Guidelines: Delivering on the June 2015 G-7 Leaders’ Summit Declaration, the USNCP commits to undergo a peer review in the fall of 2017 contingent on OECD Secretariat availability. The USNCP will publish a 2017 outreach plan in early 2017, which will include outreach to stakeholders outside of the United States. By 2017, the USNCP will implement procedures to reduce barriers for stakeholders who would like to engage in the USNCP process but do not speak and/or read English. The USNCP facilitated its first-ever successful mediation in 2015 and two successful mediations as of June 2016. By 2016 the USNCP also implemented 97 percent of the recommendations of its Stakeholder Advisory Board’s 2014 report. The mandate of the Stakeholder Advisory Board to the USNCP will be updated to further address priorities espoused in this NAP.” – Implementing Department or Agency: State
Annex I: The NAP Process [page 24]
“In addition to the four open dialogues, the U.S. government created a dedicated email address for stakeholder input on the NAP process through which we received written input from a variety of different stakeholders … Key themes raised by stakeholders included … promote RBC through U.S. government procurement practices….”