1. OECD Guidelines for Multinational Enterprises
Serena Lilywhite

2. 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)

3. 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

4. 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?

5. 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

6. 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)

7. 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

8. 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

9. 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

10. 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?

11. 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

12. 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

13. Remedy Remains rare - cases

14. 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

15. 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

16. 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?

17. 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

18. 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

20. 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?