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)

What do they cover? Concepts & principles, e.g. ownership, size of enterprise, equity of treatment General policies, e.g. Contribute to sustainable development, but most importantly “risk based due diligence” and reference to business relationships, suppliers & subcontractors”. Disclosure Human rights Employment & industrial relations Environment Combating bribery Consumer interests Science & technology Competition Taxation

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?

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

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)

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/oecd-watch-case-check/case-check

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

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

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?

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

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

Remedy Remains rare - cases

Steps to filing a complaint (things for you to do) Consider a complaint Complete the feasibility questions Identify desired outcomes Write the complaint Filing the complaint and mediation Closing the case, monitoring and follow up

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

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?

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

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

http://oecdwatch.org/oecd-watch-case-check

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?