Part 10: The U.S. National Contact Point: Corporate Social Responsibility Between Nationalism, Internationalism and Private Markets Based Globalization

 (Pix Source HERE)

This Blog Essay site devotes every February to a series of integrated but short essays on a single theme. For 2013 this site introduces a new theme: The U.S. National Contact Point: Corporate Social Responsibility Between Nationalism, Internationalism and Private Markets Based Globalization.

Part 10:  The U.S. NCP and Specific Instance Claims:  The Early Cases 2000-2004

This series builds on some ideas I have been working through for a number of years relating to a fundamental shift in the approaches to corporate governance that broaden the ambit of corporate governance issues from a singular focus on internal governance (the relationships among officers, shareholders and directors) to one that includes corporate behavior and the standards by which officers, directors and shareholders exercise their respective governance authority. This shift also changes the scope of what is understood as "law" to be applied to issues of corporate governance, from one principally focused on national law to governance norms that may be sourced in the declarations and other governance interventions of public and private international bodies. Lastly, it appears to point to an evolution to the role of the state from the principal source of standards and enforcer of law to a vehicle for the implementation of international standards  in which enforcement power is left to global market actors--principally consumers and investors function of the decisions of global actors.  All of this is inconsistent with traditional notions of the role of law, the scope of corporate governance and the nature of corporate social responsibility int he United States.  The extent to which the United States participates in the construction of these autonomous international systems may suggest the direction in which government policy may be moving away from the traditional consensus of corporate responsibility to something perhaps entirely new.

With this post the series turns to the specific instance claims of the U.S. NCP.  The focus here is on the early claims considered by the U.S. National Contact Point under the OECD Guidelines for Multinational Enterprises (2011) (MNE Guidelines). Subsequent posts will consider the claims and then on the context of the NCP system and note the divergence of the US approach to that of the specific instance jurisprudence of other OECD NCPs.

(Pix (c) Larry Catá Backer 2013)

Part 10: The U.S. NCP and Specific Instance Claims: The Early Cases 2000-2004


The U.S. NCP commenced its activity in 2000.  The early complaints were decided under the Republican Administration of George Bush for the most part.  They are the product of an organization and policy that was modified significantly  during the course of the first term of President Bush's successor, President Obama. These cases are taken from OECD Guidelines for Multinational Enterprises: Specific Instances Considered by National Contact Points (22 November 2011). This document is quite useful.

This document provides an archive of specific instances that have been or are being considered by NCPs as of June 2011. This archive seeks to improve the quality of information disclosed by NCPs while protecting NCPs’ flexibility –called for in the June 2000 Council Decision –in determining how they implement the Guidelines. Discrepancies between the number of specific instances described in this table and the number listed in Section IV could arisefor at least two reasons. First, there may be double counting –that is, the same specific instance may be handled by more than one NCP. In such situations, the NCP with main responsibility for handling the specific instance would generally note its co-operation with other NCPs in the column “NCP concerned.” Second, the NCP might consider that it is not in the interests of effective implementation of the Guidelines to publish information about the specific instance (note that recommendation 4.b. states that “The NCP will... make publicly available the results of these procedures unless preserving confidentiality would be in the best interests of effective implementation of the Guidelines”). The texts in this table are submitted by the NCPs. Company, NGO and trade union names are mentioned when the NCP has mentioned these names in its public statements or in its submissions to the Secretariat.

The U.S. NCP does not identify the parties to its specific instance processes. This makes either identification or assessment difficult.   The specific instances are remarkable for their lack of transparency.  They are also remarkable for the unwillingness of the U.S. NCP to issue any finale statement--except in one instance. There is a certain arrogance to these reports--a sense that government may engage in these activities without any accountability except within the apparatus of the government itself and to some extent, with its peer states within the OECD.  The lack of information also tended to belie the U.S. core obligation to  provide information about the MNE Guidelines. The objective seems clear--the clear policy to ensure that these complaints never arise to anything that might appear to be remotely judicial or fact finding in character.  The fear of juridification, or of the UN NCP's contribution to the development of an interpretive base for the MNE Guidelines is palpable. More importantly, the willingness of the US NCP to decline cases merely because the company declined to participate is, in some respects, tantamount to a complicity in efforts to avoid the US's treaty obligations.  Not only did this position obviate the responsibility to investigate claims, but also relieved the US NCP of any need to develop standards or guidance to US companies with respect to the meaning and application of the MNE Guidelines. And because there is no record fo the facts or allegations asserted, there was no way to gain any value from these cases beyond the parties ot the case itself. If the US government policy was to minimize the impact of the NCP system and the relevance of the MNE Guidelines they could not have chosen a better administrative approach to that goal.  As a consequence, the specific instance process itself becomes mockery of itself and the policy implications are clear--these standards are unlikely to be taken seriously by the United States.

In 2000 the US NCP considered one specific instance:

 1. June 2000:  Host country was the US. The complaint involved the U.S. NCP, consulting with the French NCP in the United States. The claim involved breach of Chapter IV of the MNE Guidelines (Employment and Industrial Relations) touching on employee representation.  No final statement was produced but the parties reached agreement.

In 2001, the US NCP considered two specific instance complaints.

1.  February 2001. Host country was the U.S. The complaint involved the U.S. NCP. The claim involved breach of Chapter IV of the MNE Guidelines (Employment and Industrial Relations) touching on employee representation.  No final statement was produced but the parties reached agreement.

2. November 2001.  Host country was Liberia. The complaint focused on the investigation of an international ship registry. The identity of the claimant is unknown   The claim involved breaches of Chapters II (General Policies); III (Disclosure); and VI (Combating Bribery). The US NCP concluded in its preliminary assessment that the conduct in question was being effectively addressed through other appropriate means, including a United Nations Security Resolution. Assessment is not available.

In 2002 the US NCP considered three specific instance complaints. 

1. July 2002.  Host country was the U.S.  The complaint involved the U.S. NCP, consulting with the French NCP. The complaint focused on employment and industrial relations, freedom of association and collective bargaining under MNE Guidelines, Chapter IV (Employment and Industrial Relations). No Final Statement was issues; the parties reached agreement.

2.  October 2002. Host country was the Democratic Republic of the Congo. The complaint involved the U.S. NCP and what is described as a number of other unidentified NCPs. The focus of the complaint was Business in conflict zones,  natural resource exploitation under what is described as number provisions of the MNE Guidelines. No final statement was produced. The specific instance was closed without resolution when a UN Panel Report concluded that all outstanding issues with the U.S.-based firms cited in the initial report were resolved. US NCP concluded its facilitation of communications between the UN Panel and the US companies.

3. November 2002.  Host country was described as "global" with a focus on Vietnam and Indonesia. The complaint involved the U.S. NCP, consulting with the German NCP.  The focus of the complaint was employee relations in global manufacturing operations under MNE Guidelines, Chapter IV (Employment and Industrial Relations). The U.S. NCP declined involvement, concluded that the issues raised were being adequately addressed through other means. 

In 2003 the US NCP considered two specific instance complaints.

1.  June 2003.  Host Country was the U.S. The complaint involved the US NCP consulting with the French NCP. The focus of the complaint was employment and industrial relations, and collective bargaining under MNE Guidelines Chapter IV. The specific instance resolved under U.S. labor law; the US NCP released its first final statement here.

2. June 2003. Host Country was the U.S. The complaint involved the US NCP consulting with the German NCP. The focus of the complaint was employment and industrial relations, and collective bargaining under MNE Guidelines Chapter IV. The specific instance was abandoned when the complainant trade union chose not to pursue the matter further.

In 2004 the US NCP considered five specific instance complaints.

1.   July 2004. The host country was Mexico.  The complaint involved the U.S. NCP, consulting with the Mexican NCP. The focus of the complaint was employment and industrial relations, collective bargaining,and freedom of association under MNE Guidelines Chapter IV. The claim was remanded to Mexican NCP based on fact that specific instance occurred in Mexico.

2.  August 2004. The host country was the United States. The complaint involved the U.S. NCP, consulting with the Netherlands NCP. The focus of the claim was employment and industrial relation sunder Chapter IV and consumer protection under Chapter VII of the MNE Guidelines. The claim was dismissed because the U.S. NCP declined involvement after initial assessment due to lack of investment nexus: It was also reported that the parties later reached agreement under U.S.labor law.

3.  August 2004. The host country was the Democratic Republic of the Congo. The complaint involved the U.S. NCP.   The focus of the claim was complex yjhough unexplained--centering on business in conflict zones, natural resource exploitation under numerous standards of the MNE Guidelines.  The U.S. NCP declined involvement after concluding that the UN Panel of Experts report had resolved all outstanding issues with respect to US companies involved.

4.  August 2004. The host country was the United States. The focus of the specific instance was employment and industrial relations under MNE Guidelines Chapter IV. The complaint involved the U.S. NCP.  The claim was dismissed because the company declined assistance.

5.  September 2004. The host country was the United States. The focus of the specific instance was employment and industrial relations under MNE Guidelines Chapter IV. The complaint involved the U.S. NCP  The claim was dismissed because the company declined assistance.

__________ 

Number of Claims by year:
2000 -- 1

2001 -- 2

2002 -- 3

2003 -- 2

2004 -- 5

MNE Guidelines Provision

Chapter I: 1 (2002)

Chapter II: 1 (2001); 1 (2002)

Chapter III: 1 (2001); 1 (2002)

Chapter IV: 1(2000); 3 (2002); 1 (2003); 5 (2004)

Chapter V: 1 (2002)

Chapter VI: 1 (2001)
Chapter VII: 1 (2004)

Final Statement published

2000 -- 0

2001 -- 0

2002 -- 0

2003 -- 1

2004 -- 0

Parties Reached Agreement

2000 -- 1

2001 -- 1

2002 -- 1

2003 -- 0

2004 -- 1

Dismissal because of action by other agencies

2000 -- 0

2001 -- 1 (UN action)

2002 -- 1 (UN Action); 1 (adequately addressed elsewhere).

2003 -- 1 (US Labor law applied); 1 (complainant abandoned complaint)

2004 -- 1 (remanded to Mexico); 2 (UN NCP declined involvement); 2 (company declined assistance)

Host Country

2000 -- US (1)

2001 -- U.S. (1); Liberia (1)

2002 -- U.S. (1); Global (1); Vietnam (1); Indonesia (1); 1 (Democratic Republic of Congo)

2003 -- U.S. (1)

2004 -- U.-S. (3); 1 (Mexico), 1 (Democratic Republic of the Congo).

Assessment or Statements Available

2000 -- 0

2001 -- 0

2002 -- 0

2003 -- 1

2004 -- 0

Consultation

2000 -- 1 (France)

2001 -- 0

2002 -- 1 (Germany)

2003 -- 1 (France); 1 (Germany)

2004 -- 1 (Mexico); 1 (Netherlands)