Transparency vs. Confidentiality: Why There Is a Need for More Transparent OECD National Contact Points - By Abdurrahman Erol

Editor’s note: Abdurrahman is currently working for Doing Business Right project at the Asser Institute as an intern. He received his LL.M. International and European Law from Tilburg University and currently he is a Research Master student at the same university.


  1. Introduction

The 2011 update of the OECD Guidelines for Multinational Enterprises (hereinafter ‘Guidelines’-for some introductory information, see here) introduced various changes to the 2000 text of the Guidelines, including a whole new chapter on human rights in line with the UN Guiding Principles on Business and Human Rights. National Contact Points (NCPs) - non-binding, state-based, non-judicial grievance mechanisms established by the adhering states - have since then concluded approximately 60 cases submitted under the newly-introduced human rights chapter.

If an NCP believes that the issues raised in a submission merit further consideration, it accepts the complaint, prepares an initial assessment report and offers its good offices to the parties of the complaint.[1] Parties may reject the offer, accept the offer but fail to reach an agreement in the mediation or, if everything goes well, reach an agreement. In any of these scenarios, the NCP concludes the specific instance with a final assessment report.[2] Between the initial and final assessment reports, however, NCPs are not required to communicate details of the ongoing mediations to the public. Nor do they have to provide any specific details about the agreement of the parties, if at all, along with or after the final report.[3]

NCPs aim to promote the effectiveness of the Guidelines, to handle enquiries and to use a complaint procedure (so-called specific instance procedure) to facilitate settlements of disputes that may arise in case of non-compliance with the Guidelines by enterprises. Although to provide effective remedies to victims of business-related human rights abuses is not explicitly included among their aims, NCPs have the potential to serve as a forum to which victims can turn to obtain effective remedies.[4] They can receive complaints alleging the violation of internationally recognized human rights and offer mediation to the parties of the complaint to find a solution on which both parties agree upon.

In more than 20 out of these approximately 60 cases concluded, parties to the dispute reached a settlement through a mediation procedure facilitated by the NCP. These cases are considered ‘successful’ or ‘positive’ by the OECD.[5] But can these really be considered as such? Do the NCPs function as an effective grievance mechanism which provides access to remedies to victims of business-related human rights abuses in the cases they have settled? Or were these cases found successful only because the NCPs dealing with them claim so, regardless of the actual remedies provided? In this blog, I will elaborate on the concept of ‘success’ as used by the OECD and how the cloudy nature of the procedure raises questions about the successful conclusion of the cases and of the role of NCPs in this regard.More...



Doing Business Right – Monthly Report – January 2018 - By Catherine Dunmore

Editor's Note: Catherine Dunmore is an experienced international lawyer who practised international arbitration for multinational law firms in London and Paris. She recently received her LL.M. from the University of Toronto and her main fields of interest include international criminal law and human rights. Since October 2017, she is part of the team of the Doing Business Right project at the Asser Institute.

Introduction

This report compiles all relevant news, events and materials on Doing Business Right based on the daily coverage provided on our twitter feed @DoinBizRight. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.


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The Headlines

Landmark High Court case against UK mining company over alleged Sierra Leone worker abuse

On 29 January 2018, a landmark six week hearing began at the High Court in London in a case brought by 142 claimants from Sierra Leone against Tonkolili Iron Ore, a subsidiary of the UK based African Minerals. The case involves allegations of worker abuse in 2010 and 2012 at the Tonkolili Iron Ore Mine in Sierra Leone, including complicity in rape, assault, false imprisonment and the police murder of a protestor complaining over pay and conditions. Human Rights Watch previously reported how the government and African Minerals forcibly relocated hundreds of families from verdant slopes to a flat, arid area, thereby removing their ability to cultivate crops and engage in income generating activities. The claimants’ lawyers, Leigh Day, stated that the case “demonstrates that those companies headquartered in the UK that operate abroad in rural and isolated environments can be held to account when their operations face serious allegations of human rights abuses”. Tonkolili Iron Ore denies responsibility for the incidents against workers and villagers and claims full responsibility lies with the Sierra Leone police. Unusually, the trial will see the judge, Mr Justice Turner, travelling to Freetown for two weeks so that evidence can be taken from witnesses in person, after some witnesses were unable to obtain visas for the United Kingdom.

West Kalimantan villagers file complaint against the Roundtable on Sustainable Palm Oil

On 23 January 2018, a complaint was filed with the Organization for Economic Cooperation and Development’s national contact point in Switzerland by an Indonesian community rights group against the Roundtable on Sustainable Palm Oil for its failure to address complaints made by residents of two West Kalimantan villages. The indigenous Dayak community in Kerunang and Entapang villages had previously filed an urgent complaint with the RSPO accusing one of its members, Malaysian palm oil giant Sime Darby, of stealing their tribal land through its subsidiary Mitra Austral Sejahtera. They allege that Mitra Austral Sejahtera breached the RSPO Principles and Criteria for the Production of Sustainable Palm Oil relating to commitment to transparency, compliance with applicable laws and regulations and responsible consideration of employees, and of individuals and communities affected by growers and mills. It is alleged that the RSPO failed to respond to the request for the return of tribal lands and accordingly failed to meet its obligations under the OECD Guidelines for Multinational Enterprises. Sime Darby has stated that the land dispute has been discussed at the RSPO's annual meetings since 2012, and that it looks “forward to the cooperation of the communities towards ensuring that the eventual return of their land is socially, environmentally and economically viable”. More...




Corporate Responsibility for Climate Change: Litigation and Other Grievance Mechanisms - By Elisa Chiaro

Editor’s Note: Elisa Chiaro is a legal consultant focussing on Business and Human Rights and International Criminal Law. In 2016 she completed an LL.M. at SOAS, University of London. Before that she worked for five years as international corporate lawyer both in Italy and UK. She is admitted to the Bar in Italy.


1.      Introduction

According to the Intergovernmental Panel on Climate Change (“IPCC”) climate change is real: “[h]uman influence on the climate system is clear, and recent anthropogenic emissions of greenhouse gases are the highest in history.”[1]

From a scientific point of view, it is well established that the concentration of greenhouse gases (“GHGs”), which are present in nature and essential for the survival of human beings and plants, is linked to the Earth’s temperature, which has been rising steadily since the Industrial Revolution. From the perspective of public health, according to the WHO, an effect of climate change will be an increase of approximately 250,000 deaths per year between 2030 and 2050 due to malnutrition, disease (such as malaria and diarrhoea) and heat stress.

As will be explained in the following section many international agreements and initiatives have emerged to tackle the problem. However the main goal of this post is to analyse some examples of civil judicial and quasi-judicial means that have been used to hold companies accountable for the effects of climate change. The first category under scrutiny will be litigation brought against private companies, such as in the case Lliuya v. RWE AG brought before the German Court and in American cases brought by public institutions (cities or counties) against oil companies. The second category encompasses other grievance mechanisms, such as the notification to the OECD National Contact Points of violation of the OECD Guidelines for Multinational Enterprises (“OECD Guidelines”) by corporations (Dutch NGOs v. ING Bank). More...





Is HEINEKEN truly “Brewing a Better World”? The BRALIMA case before the Dutch National Contact Point - By Constance Kwant

Editor’s note: Constance Kwant is an experienced international lawyer who has worked as in-house senior legal counsel for a top tier international financial institution in both Hong Kong and the Netherlands. She has a specific interest in sustainable business and human rights, including responsible finance.

 

Introduction

This post aims to outline, briefly analyse and to provide a critical comment in relation to striking a balance between confidentiality and transparency in the procedure followed by the Dutch National Contact Point (‘NCP’) in the Specific instance procedure filed in December 2015 by three former employees (‘Representatives’) on behalf of a group of 168 former employees of Heineken’s subsidiary Bralima SA (‘Bralima’) in Bakavu, located in the eastern part of the Democratic Republic of Congo (‘DRC’).

The case, finalised in August 2017, concerns alleged violations of labour and human rights by Bralima in the period 1999-2003, a period during which the DRC was a highly volatile and conflict-affected country, where the eastern part of the DRC was effectively under control of rebel movement DRC-Goma.The complaint also alleged that Bralima had cooperated with DRC-Goma in a number of ways throughout this period. On the basis of the alleged violations, the Representatives sought financial compensation by filing its notification with the NCP.

Since the allegations were brought forward to the NCP under the OECD Guidelines for Multinational Enterprises, this post will first provide short background information on the OECD Guidelines and the workings of the Dutch NCP, subsequently moving through the proceedings, its outcome, and a brief analysis with a critical note. More...