OECD Guidelines for
Multinational
Enterprises
Serena Lilywhite
What are the OECD Guidelines for MNE’s?
•Voluntary principles & standards to
promote corporate responsibility
•Legally binding on countries but not
companies
•Based on international treaties &
conventions
•Do not override national laws
•Governed by the OECD Investment
Committee – Declaration on Int.
Investment
•Promoted & implemented by
Governments via National Contact Points
(NCP’s)
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What do they cover?
1.
Concepts & principles, e.g. ownership, size
of enterprise, equity of treatment
2.
General policies, e.g. Contribute to
sustainable development, but most
importantly “risk based due diligence” and
reference to business relationships,
suppliers & subcontractors”.
3.
Disclosure
4.
Human rights
5.
Employment & industrial relations
6.
Environment
7.
Combating bribery
8.
Consumer interests
9.
Science & technology
10. Competition
11. Taxation
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Who do they apply to?
•Recommendations for responsible
business conduct for large & small
enterprises involved in trade &
investment – inc. financial institutions
•Approved by government to MNEs
operating in, or from, the territories of
adhering countries
•34 adhering OECD member countries
•12 non - OECD member adhering
countries – BUT not China / India
•Directed at MNE’s via signatory
countries – companies do not sign on
•
Applicable to companies in or from
these countries +
their business relationships
•
This includes subsidiaries, joint
ventures, suppliers and
investors
•QUESTIONS?
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What makes them unique?
•Only multilateral code that OECD
governments have agreed to promote
•Tripartite support
BIAC/ TUAC/ Government
OECD Watch
•National Contact Point Structure
Promotion of Guidelines to business
Handling Specific Instances - Cases
•Complaint mechanism – Non Judicial
There is someone responsible for
investigating violations
Option for NGO advocacy
Hold companies to account via state
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The complaint mechanism
•An individual, NGO or trade union can make
a complaint
•2 phases: initial assessment & specific
instance
•Complaint acceptance means the NCP
thinks there is enough evidence to
investigate / mediate
•Can be an ad hoc process -–
•Company can choose not to participate
•Confidentiality during process
•Mediated outcome is the objective
•NCP must issue a final statement & make it
public
•No appeal process & no follow up – but can
appeal process (not decision)
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Using the complaint mechanism
•There can be benefits to
filing a complaint:
•Be prepared
•What do you hope to
achieve?
•See OECD Watch Case
Check on line
http://oecdwatch.org/oecdwatch-case-check/casecheck
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The Initial Assessment Phase
•This is the first step / investigation by
the NCP
•The objective is to review the
complaint material submitted by the
NGOs and decide if there is enough
evidence of non-compliance with the
Guidelines
•This stage is unlikely to include
assessment of alleged breaches
•The NCP may meet with the NGOs
(complainants) and the company at
this stage to seek clarification
•The NCP may request more
information from either party
•The NCP may limit the scope of a
complaint
•You can continue to campaign
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The Specific Instance Phase
Second phase
•If a complaint is accepted as
a specific instance it means
the NCP thinks there is
enough evidence to warrant
further investigation.
•NCP can seek information
from others
•NCP can do a country visit for
fact finding – not common
•Can be a lengthy process
•Confidentiality applies
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What Happens in Mediation?
•Mediation is a discussion between the
company & NGO/ TU, with the NCP trying
to facilitate an agreed outcome
•You may be asked to prepare an
opening statement
•Are you prepared to mediate?
•Know what you are prepared to
compromise on
•Know what you will be prepared to
accept
•If there is a new & relevant development
– make this known in advance
QUESTIONS?
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The NCP Final Statement
Quality varies
•
NCP must issue final statement at end of complaint process, and make it
public
•
Many NCPs refuse to state if Guidelines breached, or withhold aspects of
complaint
•
Ensure final statement does not include conclusions based on information
you have not accessed
•
Final statement should document where agreement was reached and not
reached.
•
Ask to see draft final statement – full disclose of issues, parties, breaches
and outcome is the aim
•
If no mutually agreeable outcome, NCP must still issue a statement. Few
NCPs will determine if Guidelines breached
•
Include recommendations to companies
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Follow up and Communication
•There is no appeal or follow up
mechanism
•You can contact OECD Investment
Committee if NCP ineffective and
inactive
•There is no guaranteed
compensation or remedy
•When the case is concluded you can
put out a press release, but you
cannot disclose information or
conversations from the case (unless
already in public domain)
•You can continue dialogue directly
with the company, and campaign, but
may get pressure to stop e.g.
G-Star case - Gopinath
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Remedy Remains rare - cases
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Steps to filing a complaint
(things for you to do)
1. Consider a complaint
2. Complete the feasibility questions
3. Identify desired outcomes
4. Write the complaint
5. Filing the complaint and mediation
6. Closing the case, monitoring and follow up
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Consider a complaint
There can be benefits to filing a complaint if you enter into the
process properly prepared and with a clear view of what
outcome you hope to achieve.
• Mediated outcome
• Attract media attention
• Put additional pressure on the company from consumers,
investors, or government officials
• A complaint can be one of various strategies pursued
simultaneously, e.g. media, lawsuit, other grievance
mechanism
• An OECD Guidelines complaint process is time and resource
intensive
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Complete the OECD Watch on Case Check
•What is the main company
•Are there any business
relationships you also want to
hold accountable in the
complaint?
•Which NCP do you go to?
•Which OECD Guidelines have
been breached?
•What is your interest in the
complaint?
•What evidence do you have?
•What are your demands from
the company / NCP?
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Identify desired outcomes
• Some issues are more suitable for mediation
than others
• Have a clear idea which issues are or are not
negotiable for you?
• Continually assess what an ideal outcome
would be versus an acceptable or useful one
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Closing the case, monitoring and follow up
• Make sure the NCP correctly represents your position in
the final statement
• Lobby the NCP to include a determination of breaches
and recommendations for the company in its final
statement
• Lobby the NCP to follow up on its final statement
• Also if the NCP refuses to follow up on the case, it is
advisable to keep a close watch on the company
• Determine how you can use the outcome of the final
statement to advance your case
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http://oecdwatch.org/oecdwatch-case-check
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Questions / issues for the
ANCP?
•
Salween Dam – SMEC
•
Will the ANCP do a fact finding visit?
•
How will the ANCP engage with complainants if based in Myanmar,
Cambodia, Nepal, Fiji etc?
•
Others?
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