Report on Current Actions Under OECD Guidelines for Multinational Enterprises

The OECD's Guidelines for Multinational Enterprises (English, French, German) are are recommendations addressed by governments to multinational enterprises operating in or from forty three (43) adhering governments, representing most developed states. "The Guidelines provide voluntary principles and standards for responsible business conduct consistent with applicable laws and internationally recognised standards. However, the countries adhering to the Guidelines make a binding commitment to implement them in accordance with the Decision of the OECD Council on the OECD Guidelines for Multinational Enterprises." (From Guidelines for Multinational Enterprises 2011 Edition, Preface, Para. 1, at 13).

The Guidelines are crafted as voluntary principles and standards for responsible business conduct in eleven specified areas of corporate activity: 

1. Concepts and Principles
2. General Policies
3. Disclosure
4. Human Rights
5. Employment and Industrial Relations
6. Environment
7. Combating Bribery, Bribe Solicitation and Extortion 
8. Consumer Interests
9. Science and Technology 
10. Competition 
11. Taxation

The most interesting feature of the Guidelines are its implementation (enforcement) procedures. 

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. The NCPs assist enterprises and their stakeholders to take appropriate measures to further the implementation of the Guidelines. They also provide a mediation and conciliation platform for resolving practical issues that may arise. (From Guidelines for Multinational Enterprises 2011 Edition, Forward, at 3).

These are meant to provide national facilitation for implementing international norms that may or may not be included in the standards of the domestic legal order of facilitating states. See Larry Catá Backer, Part II: The OECD, Vedanta, & the Indian Supreme Court—Polycentricity, Transnational Corporate Governance and John Ruggie’s Protect/Respect Framework, Law at the End of the Day, Nov. 3, 2009.  Nor do they need to comply specifically with the procedural rules of the facilitating state.  See Larry Catá Backer,Part I: The OECD, Vedanta, and the Supreme Court of India—Polycentricity in Transnational Governance--The Issue of Standing,   Law at the End of the Day, Nov. 1, 2009.  The Guidelines make this clear.  "National Contact Points have an important role in enhancing the profile and effectiveness of the Guidelines. While it is enterprises that are responsible for observing the Guidelines in their day-to-day behaviour, governments can contribute to improving the effectiveness of the implementation procedures." (From Guidelines for Multinational Enterprises 2011 Edition, Commentary on the Implementation Procedures of the OECD Guidelines for  Multinational Enterprises, Para. 7 (Commentary on the Procedural Guidance for NCP's, at 78).

Implementation was originally conceived as a method "to enhance procedures by which consultations may take place on matters covered by these Guidelines and to promote the effectiveness of the Guidelines." (From Guidelines for Multinational Enterprises 2011 Edition, Amendment of the Decision of the Council on the OECD Guidelines for Multinational Enterprises, at 67). The National Contact Point was the place where a state could undertake promotional activities and inquiries about the Guidelines.  It was also a place where states could "contribute to the resolution of issues  that arise relating to the implementation of the Guidelines in specific instances."   (Ibid., Para. I.1). It is this last charge that has become increasingly important as National Contact Points have begun to assume an increasingly important role as a de facto institutional body where violations of international norms may be interposed.  (See, Backer, Larry Catá, Rights and Accountability in Development (Raid) V Das Air and Global Witness V Afrimex: Small Steps Toward an Autonomous Transnational Legal System for the Regulation of Multinational Corporations (June 30, 2009). Melbourne Journal of International Law, Vol. 10(1): 258-307 (2009). 

OECD Watch has been very good at monitoring some of the activity of civil society organizations and others in the administration and enforcement of the Guidelines.  As is its custom, OECD Watch as recently published its March 2012 Quarterly update of complaints  made relating to corporate violations of the Guidelines.  OECD Watch Quarterly Case Update March 2012: Quarterly Case Update of OECD Guidelines Cases Filed by NGOs, OECD Watch, March 2012 (for the full document access here: OECD Watch Quarterly Case Update March 2012 (Size 498.2 kB) ).

OECD Watch summarized the highlights of the report:

The highlights of this Quarterly Case Update include new OECD Guidelines complaints filed against Centerra Gold for human rights and environmental violations in Mongolia and Shell for environmental and human rights problems in the Niger Delta. The Norwegian NCP has accepted a complaint against Sjovik for undermining the Sahrawi peoples right to self-determination in its fishing operations and rejected cases against Norwegian Church Aid alleging poor health conditions its refugee camps in Kosovo and Statoil for exploiting oil sands in Canada and thereby contributing to Canada's violation of international obligations to reduce GHG emissions. Additionally The LEAD Group files complaints with the US and UK NCPs against Innospec, Xstrata, and TetraBOOST for alleged environmental breaches associated with the production of leaded gasoline. Specific Instances recently concluded with an agreement between the parties include the complaint against Nidera regarding human rights issues at Argentine corn field operations, several cases regarding child labour and cotton trading in Uzbekistan, and the case against Cermaq for its salmon farming practices. The Norwegian NCP furthermore issued a final statement in the Intex Philippines nickel mining case determining Intex has not acted in accordance with the OECD Guidelines. (From OECD Watch Quarterly Case Update March 2012: Quarterly Case Update of OECD Guidelines Cases Filed by NGOs, OECD Watch, March 2012).

Recent cases include:
  

Canadian and Mongolian NGOs file complaint at Canadian NCP regarding human rights and environmental violations at Centerra Gold’s mining operations in Mongolia (p.2)

Amnesty International and Friends of the Earth file complaint with Dutch and UK NCPs against Shell based on the findings of a UNEP related to environmental and human rights problems in the Niger Delta (p.2)

The Norwegian Support Committee for Western Sahara files complaint at Norwegian NCP against Sjovik AS undermining the Sahrawi people’s right to self-determination in its fishing operations (p.3)

The Norwegian Climate Network and Concerned Scientists Norway file complaint against Statoil for exploiting oil sands in Canada, and thereby contributing to Canada's violation of international obligations to reduce GHG emissions; Norwegian NCP rejects complaint claiming that it was directed at Canada's policy of allowing oil sands development rather than the activities of Statoil; NCP highlights risks oil sands operations present to the climate and environment (p.3)

The LEAD Group files complaints with the US and UK NCPs against Innospec, Xstrata, and TetraBOOST for alleged environmental breaches associated with the production of leaded gasoline; Innospec refuses to engage in mediation, and US NCP closes case without making determination; Xstrata engages in mediation by UK NCP; UK NCP conducts initial assessment and facilitates e-mail exchanges between parties in TetraBOOST case (p.4)

129 Roma refugees file complaint at Norwegian NCP against Norwegian Church Aid (NCA) alleging poor health conditions a NCA-run refugee camps in Kosovo; NCP rejects case claiming NCA is not an MNE (p.4) (From OECD Watch Quarterly Case Update March 2012: Quarterly Case Update of OECD Guidelines Cases Filed by NGOs, OECD Watch, March 2012, page 1).

I have suggested the that the NCP offers a substantial potential  for creating a non-state based framework global standards for the regulation of corporate conduct that exists along side but is not dependent on the peculiarities of the rules of individual states. Backer, Larry Catá, Rights and Accountability in Development (Raid) V Das Air and Global Witness V Afrimex: Small Steps Toward an Autonomous Transnational Legal System for the Regulation of Multinational Corporations (supra). It serves increasingly as the basis for the implementation of non-state governance systems as it becomes a nexus point for complementary standards--from the new U.N. Guiding Principles of Business and Human Rights, to the ISO Standard 26000 on Corporate Social Responsibility (Access full text of ISO-OECD Memorandum of Understanding) and the GRI's Corporate Reporting systems (Access full text of GRI OECD Memorandum of Understanding). 

Caption: "Mervyn E. King, Chairman, Global Reporting Initiative and OECD Deputy Secretary-General Richard Boucher." From OECD-GRI partnership to help multinational companies operate responsibly, OECD Press Release, Dec. 13, 2010); "Companies worldwide will be given greater guidance and support on how to conduct their business responsibly and report on their sustainability performance thanks to a partnership between the Global Reporting Initiative (GRI) and the OECD. The partnership, announced today, will help companies make greater use of the OECD Guidelines for Multinational Enterprises and the GRI Sustainability Reporting Framework, bringing increased coherence and consistency to their efforts to act more responsibly and be more transparent about their sustainability."