Part 11: 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 11:  The U.S. NCP and Specific Instance Claims:  The Cases 2005-2008 

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 11:  The U.S. NCP and Specific Instance Claims:  The Cases 2005-2008

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).

An earlier post considered the US NCP's early application of its specific instance powers from the end of the second Clinton Administration through the first term of the Bush Administration. What emerged was fairly clear-- a substantial effort to downplay the role of the specific instance process and a strong unwillingness to engage, though the apparatus of the US government, in any sort of interpretive enterprise of the MNE Guidelines.  More than that, the US NCP appeared to be going out of its way not merely to avoid appearing to embrace a quasi-judicial function, but also a determination to avoid any specific application of the MNE Guidelines to business enterprises in ways that would provide any sort of guidance. The policy was not lost on claimants; the number of claims made to the US was small.

This post considers the NCP's specific instant complaints through the end of the effective Bush Administration in 2008 (Mr. Bush was in office from January 20, 2001 – January 20, 2009, but the 2009 NCP cases will be attributed to the Obama administration).   The Bush administration's NCP speicif instance policies remain unchanged through the tend of the second term.  For all intents and purposes, the MNE Guidelines remained a backwater, government policy and action making it clear that there is neither point to pursuing claims, nor a desire of the US government to use the MNE Guidelines to develop or guide corporate governance behaviors or policies.

In 2005, the US NCP considered two specific instance complaints.

1. March 2005.  Host country was the U.S. The complaint involved the U.S. NCP. The claim centered on employment and industrial relations issues under MNE Guidelines Chp. IV. The parties reached agreement under U.S. labor law and withdrew specific instance petition.

2. May 2005.  The host country was the U.S. The complaint involved the U.S. NCP. The claim centered on employment and industrial relations issues under MNE Guidelines Chp. IV. The specific instance was resolved through other procedures under U.S. law.

On 2006, the US NCP considered five specific instance complaints. 

1. March, 2006. The host country was the U.S. The complaint involved the U.S. NCP. The claim centered on employment and industrial relations issues under MNE Guidelines Chp. IV. The parties reached agreement under U.S. labor law and withdrew specific instance petition.

2. May, 2006. The host country was the U.S. The complaint involved the U.S. NCP consulting with the Polish NCP. The claim centered on employment and industrial relations issues under MNE Guidelines Chp. IV as well as a sexual harassment claim. The claim was remanded to the Polish NCP based on the fact that specific instance occurred in Poland.

3. June, 2006. The host country was the U.S. The complaint involved the U.S. NCP. The claim centered on employment and industrial relations issues under MNE Guidelines Chp. IV.  The parties reached agreement under U.S. labor law and withdrew specific instance petition.

4. August, 2006. The host country was the U.S. The complaint involved the U.S. NCP consulting with the German NCP. The claim centered on employment and industrial relations issues under MNE Guidelines Chp. IV. The claim was abandoned by the US NCP because there was no response from last inquiries to parties.

5. November, 2006. The host country was the U.S. The complaint involved the U.S. NCP consulting with the Austrian NCP. The claim centered on employment and industrial relations issues under MNE Guidelines Chp. IV.The US NCP closed the specific instance when the initiating party ceased representing the employees of the company in question.

In 2007 there were no specific instance claims filed.

In 2008, there was 1 specific instance claim filed.

1. September 2008. The host country was the U.S. The complaint involved the U.S. NCP. The claim centered on employment and industrial relations issues under MNE Guidelines Chp. IV.  The specific instance was declined due to lack of investment nexus.

 __________

Number of Claims by year:
2005 -- 2

2006 -- 5

2007 -- 0

2008 -- 1

MNE Guidelines Provision

Chapter I:

Chapter II:

Chapter III:

Chapter IV: 2 (2005); 5 (2006); 1 (2008)

Chapter V:

Chapter VI:

Final Statement published

2005 --0

2006 --0

2007 -- No complaints

2008 --0

Parties Reached Agreement

2005 -- 2 (other law including labor law)

2006 -- 2 (other law including labor law)

2007 -- no cases

2008 --0

Dismissal because of action by other agencies

2005 -- 1 (resolved through other procedures)

2006 -- 1 (transferred on jurisdictional grounds)

2007 -- No complaints

2008 -- 0


Claim abandoned by NCP for failure of part to respond
2005 -- 0
2006 -- 1 (no response by parties); 1 (no response by complainant)
2007 -- no complaints
2008 -- 1 (declined lack of investment nexus)

Host Country

2005 -- U.S. (2)

2006 --U.S: (4); Poland (1).

2007 -- no cases

2008 -- U.S. (1)

Assessment or Statements Available

2005 -- 0

2006 --

2007 -- No complaints

2008 --

Consultation

2005 -- 0

2006 -- 1(Poland); 1 (German), 1 (Austria);

2007 -- No complaints

2008 -- 0