Part 12: 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 12:  The U.S. NCP and Specific Instance Claims:  The Early Obama Administration Cases 2009-2010 

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 12:  The U.S. NCP and Specific Instance Claims:  The Early Obama Administration Cases 2009-2010 

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).

Earlier posts considered the US NCP's early application of its specific instance powers from the end of the second Clinton Administration through the end of the Bush Administration's second term (2008).The history of the NCP's relationship to specific instance complaints was quite clear: the BUsh Administration appears to have adopted a policy to ensure that the work of the NCP in the United States could have no effect on the development of law or governance. The Administration policy also seemed to prefer activity that would not produce any action that could be viewed as contributing to the development of the MNE Guidelines in the sense of providing any interpretaiton of the application of the MNE Guidelines.  The confidentiality provisions were privileged almost to the point of obsession.  Neithjer claimant nor enterprise was identified.  No facts were produced to provide guidance, and though one final statement was proiduced, it appears substantially unavailable. The NCP's work was clearly directed to the projection of the MNE Guidelines outward.  All cases that might have been decided on the basis of domestic law were dismissed.  The idea was that the MNE Guidelines did not represent an additional or separate set of governance guidelines. To the extent useful, the MNE Guidelines were understood as a soft law version of appropriate behavior norms in states that might not have the level of development of the United States.  The idea of application of the MNE Guidelines within the United States appears inconceivable given the NCP's work.   

With the election of Barack Obama in November 2008 (official site), there might have been an expectaiton fo change.  This expectation might have been fueled by the rhetoric of the campaign as well as some of the appointments of the Obama administration, including Harold Koh.  But the OECD and its internationalist agenda appears to have remained a backwater of Obama Administration policy during the early years of that administration, and certainly did not rise to the attention of the Secretary of State Hillary Rodham Clinton during the first years of her tenure at the State Department.   This indifference is apparent in the cases.  It is also apparent in the willingness sof the Administration to continue to view the work of the OECD, including the MNE Guidelines, as an export product--not really intended for domestic consumption and thus perfectly suited tot he work of the State Department, rather than combined with the work of the Commerce Department, fpr example.  This becomes apparent in the NCP's work in 2009 and 2010, during which the US NCP considered slightly more cases but did little to change its basic approach.


For 2009, the US NCP considered three specific instance complaints.

1. April, 2009. The host country was the Philippines. The complaint involved the U.S. NCP. The claim centered on employment and industrial relations issues under MNE Guidelines Chp. IV. The U.S. NCP declined involvement after concluding issues raised were not amenable to resolution under the Guidelines.

2. October, 2009. The host country was Korea. 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.

3. November 2009. The host country was Korea. The complaint involved the U.S. NCP. The claim centered on employment and industrial relations issues under MNE Guidelines Chp. IV and discrimination under Chapter III. The initiating party declined to agree to involvement of Korean NCP, where all parties and activities were located. The U.S. NCP also declined involvement after concluding that the issues raised did not merit further consideration under the MNE Guidelines.

For 2010, the US NCP considered five complaints.  

1. April 2010. The host country was Mongolia.     The Canadian NCP has taken primary responsibility based on fact that lead MNE is headquartered in Canada.


2. April, 2010. The host country was Papua New Guinea.  The U.S. NCP declined involvement after concluding issues raised were not amenable to resolution under the Guidelines.

3. August, 2010.  The host countries were the United States and Columbia.  The French NCP has taken primary responsibility on Colombia-based issues because MNE headquartered in France; consulting with U.S. NCP on U.S.-based issues.

4. October, 2010. The Host country was the Philippines.    The U.S. NCP declined involvement pending outcome of imminent union elections.

5. October, 2010. The Host country was Uzbekistan. The U.K. NCP took primary responsibility. U.S. NCP indicated it stood ready to assist.

 __________

Number of Claims by year:
2009 -- 3

2010 -- 5

MNE Guidelines Provision

Chapter I:

Chapter II:

Chapter III:1 (2009)

Chapter IV: 3 (2009);

Chapter V:

Chapter VI:

Final Statement published

2009 --0

2010 --0

Parties Reached Agreement

2009 -- 1 (other law including labor law)

2010 --

Dismissal because of action by other agencies

2009 -- 1 (dismissed issue not actionable); 1 (dismissed on merits; party declined to transfer to Korea)

2010 -- 3 (another NCP took the case); 1 (dismissed issue not actionable); 1 (declined case)

Claim abandoned by NCP for failure of party to respond
2009 -- 0
2010 --

Host Country

2009 -- Philippines (1); Korea (2)

2010 -- Mongolia (1); Papua New Guinea (1);  Columbia (1); U.S: (1); Philippines (1); Uzbekistan (1).

Assessment or Statements Available

2009 -- 0

2010 -- 0

Consultation

2009 -- 0

2010 -- 1(France); 1 (United Kingdom)