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.


  1. Transparency of the Procedure

Transparency provisions regarding the complaint procedure before an NCP can be found in the Procedural Guidance of the OECD Guidelines. The importance of transparency as a general principle in establishing the accountability of an NCP is stressed, but in relation to finding a balance with confidentiality.[6] This balance is considered important in ensuring the effectiveness of NCPs, as well as gaining the trust of the parties to the dispute. In particular, sensitive business information, identities of individuals participating in the procedures and proceedings related to the implementation of the Guidelines will normally remain confidential, while only the final results of the procedure will be shared with the public.[7] Similar emphasis on striking a balance between confidentiality and transparency can also be found in some of the NCPs’ own procedural guidance (see for example here and here).

In reality, different NCPs have a very different understanding of transparency and it is difficult to assess whether they comply with the Guidelines’ transparency requirements and strike a fair balance between transparency and confidentiality. Take the US NCP for example. According to its procedural rules, the principle is confidentiality - that is, the communications of the parties either with each other or with the NCP should remain completely confidential. Without the consent of the other party, no party may disclose any communication or information provided during the proceedings. The failure to comply can result in the termination of the mediation. Moreover, the US NCP often does not publish statements concerning the pending complaints.[8] Some NCPs, such as the Korean NCP,[9] do not even inform the parties about their final decisions and the conclusion of their case.

This sacrifice of transparency for the sake of confidentiality in the proceedings comes with its drawbacks. It prevents outsiders, namely other stakeholders who are not party to the dispute, from expressing an informed critique of the NCPs and their effectiveness. As an important consequence of confidentiality at the NCPs, the causal link drawn by some OECD staff[10] between the work of the NCPs and the final agreements between parties becomes quite difficult to scrutinize and open to questions. Relying on three short case studies linked to disputes handled by different NCPs, I will argue that the claimed effectiveness of NCPs would gain credibility if they were acting in a more transparent fashion.  

  1. Transparency is essential because …

a.     …what an NCP considers successful is not always so

In June 2013, a complaint was submitted to the Brazilian NCP concerning the activities of a subsidiary of Kinross, a Canadian Mining Company, and its alleged detrimental impacts on the environment which caused harm to lives and houses of people living around one of the company’s gold mines. The NCP invited parties to mediation and, in late 2016, the parties reached an agreement. In the final report of the Brazilian NCP, the details of the agreement between the parties were not shared publicly. Yet, it is known that Kinross committed to compensate the damages done to houses despite the lack of proven causal link between its operations and the damages, and the NCP recommended that Kinross exercise due diligence in order to assess the impacts of its operations in the future.[11] This outcome is unique in that it is one of the few NCP cases in which a company compensated past damages. However, a report published by two NGOs in 2017 cast some doubt on this "success story". In spite of the Brazilian NCP’s recommendation to exercise due diligence, the report claimed that an ensuing expansion project of the company displaced hundreds of residents of traditional communities[12] and that adverse environmental impact of the mine continued.[13]

Although the settlement was considered successful,[14] evidence shows that this conclusion might be premature considering the company again faces similar allegations to those raised initially. Compensation for material damages and satisfaction of victims by ceasing the actions that caused human rights abuses are two types of remedies for human rights violations under international law.[15] These remedies, namely compensation of house damages and satisfaction in the form of conducting due diligence to prevent future violations, were also expected to be provided according to the final report of the NCP on the Kinross case.[16] Nevertheless, in the Kinross case, past violations which led to the initial intervention of the NCP were allegedly repeated. Therefore, in that case, the original settlement can hardly be considered as an effective remedy as it failed to prevent Kinross from committing similar violations again. Hence, it is fair to claim that the settlement did not change the situation on the ground for the victims and that the work of the NCP was probably not as successful as claimed.

The only public document that can be reached through the OECD’s website is the final statement of the NCP concluding the case. However, this document provides neither a detailed account of the proceedings nor of the agreement reached by the parties. Because the details of the agreement are unknown, the outcome of the case is hard to evaluate. It is only after the publication of an NGO report and its disclosure of some information related to the agreement that it has become easier to assess the success of the case. Access to information regarding settlements brokered by the NCPs is of great importance to determine their effectiveness as well as to hold multinational enterprises (MNEs) accountable for their commitments.

b.     …it will help increase public pressure on companies

In October 2013, World Wildlife Fund (WWF) filed a complaint to the UK NCP claiming that the activities of SOCO, a British oil and gas exploration company, in a part of the Virunga National Park in the Democratic Republic of Congo (DRC), a world heritage site, cause environmental degradations and threatens the life of local communities. In February 2014, the NCP invited both parties to mediation and, in June 2014, parties reached an agreement before the NCP. According to the settlement, SOCO agreed to halt its operations and to resume drilling within the park only if UNESCO and the DRC government confirmed that to do so would not impede on its world heritage status.[17] Moreover, SOCO committed not to conduct any operation in any other world heritage site in the future and to align its due diligence assessments with international standards and best practices in the industry. It was the first time a company agreed to cease its operations after a procedure before an NCP.

At first glance, this settlement may be viewed as an impressive success of the NCP. However, there were also some other external factors which contributed decisively to this outcome. First of all, WWF initiated an advertisement campaign which increased the publicity of the case substantially. As part of the campaign, shareholders of SOCO were prompted to rethink their investments, some influential individuals were prodded into action and an award-winning documentary on the issue was released. Furthermore, some officials of the EU and British government expressed their concerns and opposition about the operations of SOCO in Virunga. Lastly, hundreds of thousands of people around the world participated in the global campaign and signed a petition asking SOCO to abandon its plans in the DRC.

The increased public scrutiny of the complaint and the efforts of WWF put considerable pressure on SOCO and forced it to make statements regarding the case to justify its operations while not allowing it to keep the complaint out of the public eye. This case is illustrative of the potential impact of publicity on the outcome of a case pending before an NCP. The impact of public scrutiny on the management decisions of a company nudging it towards the mediation table is also visible in other cases. In one case, highlighted by OECD Watch in its latest report, company representatives admitted the public attention’s power to push them towards constructive engagement at the NCPs.[18]  The study also emphasized, based on a number of NCP cases, the detrimental impacts of the strict confidentiality requirements of the NCPs on the mediations.[19] This tells us that external factors, such as the public interest raised by a particular case, might contribute at least as much as the NCPs internal work to the successful resolution of a complaint. Moreover, it is likely that greater transparency from the part of the NCPs would generate greater public awareness and scrutiny and ease the organization of worldwide public campaigns, such as the one put together by WWF. Such publicity at (and around) the NCPs might very well be a key component of their effectiveness as a state-based non-judicial grievance mechanism. 

c.     …it will ease the assessment of the link between the work of an NCP and the settlement of a case

As we have seen in the previous section, mediations before the NCPs are not isolated from external influences. There may well be some external factors that actively contribute to a settlement. These external factors may include, among others, regulatory or legislative concerns, NGO activism or shareholder pressure. This external influence might render it difficult to draw a direct causal link between the work of an NCP and the settlement of a case. On top of that, the lack of transparency of the mediations exacerbates this difficulty by hiding many details concerning the proceedings and how, and whether, the NCP contributed to the settlement. Below, I discuss three settled cases in which external factors exerted significant pressure on companies during the mediation process at an NCP pushing them towards agreeing to a settlement.

In May 2013, the German NCP received a complaint by a German MP about three German MNEs which sourced from the burned-down Tazreen Fashion garment factory in Bangladesh, alleging that the MNEs did not comply with the OECD Guidelines when sourcing from this factory. The NCP accepted the complaint for further consideration and led mediation talks between the parties which culminated in a settlement. With the settlement, the companies agreed on the importance of workers’ rights and safety in their supply chains and committed to taking some measures to improve the fire and building safety standards of their suppliers in Bangladesh. However, the filing of the complaint and the NCP procedure coincided with the aftermath of the Rana Plaza disaster and the ensuing global outcry. Since the Rana Plaza collapse, Bangladesh has been targeted by many international and local initiatives to improve the working conditions of workers and protect labor rights. In this context, it is not straightforward to attribute the changes in the behavior of the aforementioned German companies to the non-binding German NCP procedure and the settlement of the complaint.

In March 2015, a case was submitted to the Dutch NCP concerning a Dutch pharmaceutical company, Mylan N.V., selling medicines that were used in the execution of death penalties in the US. After concluding that the case merited further discussion, the NCP facilitated mediation between the parties to the complaint. In April 2016, the complaint was settled. Accordingly, Mylan promised to enhance its due diligence and took active steps to prevent the use of its products in lethal injections in the US prisons. However, after the submission of the complaint, Mylan’s activities were also questioned in the Dutch Parliament and the responsibility of Mylan to prevent its products from being used in serious human rights violations was highlighted.[20] More importantly, some shareholders voiced their concerns about the controversial use of its products. Additionally, a pension fund announced that it sold all its shares in Mylan and would not invest in the company anymore.[21] Here again, it is not easy to disentangle what or who led Mylan to change its policies. In any case, the pressure applied by other actors was certainly not irrelevant to the final outcome of the case before the NCP.

Finally, in October 2012, an indigenous community in Sweden filed a complaint with the Swedish and Norwegian NCPs, claiming that Statkraft, a Norwegian MNE, violated their indigenous rights by planning to build a wind power plant on their herding ground. Both NCPs accepted the complaint with Norway taking the lead. Although various informal and official mediation meetings were held, the parties could not reach an agreement. The Norwegian NCP concluded the case in June 2014 and both NCPs issued their final statement in February 2016. However, a few months later, the parties of the complaint announced that they reached an agreement on their own, in order to reduce the detrimental impacts of the wind farm on the indigenous community. In this case, although the settlement was hailed as a success by the NCPs and the OECD,[22] the extent to which the NCPs contributed to the settlement is uncertain considering that it took place outside the process before the NCPs.

All these settlements share a commonality. In each case, there were some significant external factors which probably affected the outcome of the case and contributed to the settlement. Consequently, these other factors question the existence of a direct link between the NCP procedure and the conclusion of a settlement, and lead to some doubts about the capacity of the NCPs to provoke on their own the successful resolution of the disputes. Indeed, if a conjunction of external factors, such as shareholder involvement, public outrage or political intervention, is necessary for a case to be successfully settled at an NCP, then it is less the NCP process as much its general context that matters. Such a conclusion would lend some support the existing skepticism regarding the capacity of the NCPs to provide an effective remedy by themselves.[23]  In any case, more transparency during the proceedings would make it easier to measure the real impact of the NCPs on the final outcome.

  1. Conclusion

In conclusion, the NCPs should not fear an increase in transparency. Indeed, it is in their best interest to showcase the concrete impact of their work in specific cases. Firstly, publicity will arouse the interest of other actors, such as shareholders, politicians and the public. These actors can have a determining influence on the positive resolution of complaints before the NCPs. They can put pressure on companies, while the NCPs are deprived of strong bargaining power. Secondly, more transparency is key to a better assessment of the work of the NCPs. The current level of secrecy raises reasonable doubts regarding the NCPs' capacity to trigger the successful settlement of complaints. Greater publicity is essential to support the OECD’s claim that NCPs provide an effective remedy for the victims of human rights violations. This is supported by OECD Watch which considered recently “imbalanced or unduly restrictive policies on transparency and confidentiality” one of the primary reasons for the failure of NCPs to provide an effective remedy.[24] Moreover, it would lead to productive critical engagement with the NCPs' strategies in leading the parties towards a specific settlement and heighten their public accountability.  

Transparency does not entail the dissemination of every piece of information related to NCP proceedings. Indeed, companies should not be obliged to reveal unrelated/important trade secrets (and victims as well as witnesses should be able to stay anonymous for security reasons). However, it is unlikely that many of the pieces of information that may be revealed during NCP mediations will be of this kind. In any event, the following documents should be systematically published:

  • Complainant positions on the dispute (with names redacted if necessary to protect the victims or whistleblowers from potential retaliation)
  • Company positions on the dispute (with confidential trade secrets redacted)
  • NCPs proposition of settlement
  • Complainant and company positions on a potential settlement
  • Final settlement

The OECD Guidelines and the specific instance procedure are potentially promising avenues to deal with business-related human rights violations. The procedure has some advantages like having lower formal requirements than the submission of a judicial case and bringing companies and victims around a table to assist them to solve the issue outside of judicial proceedings. Nevertheless, as argued by John Ruggie himself there is still a long way to go to increase the effectiveness of the NCPs and to ensure that they provide effective remedies for complainants.[25] Significantly increasing the transparency of the NCP specific instance procedure is key to ensuring the full compliance of MNEs (and adhering states) with the Guidelines and with the spirit and letter of the UNGPs.

[1] OECD, OECD Guidelines for Multinational Enterprises (OECD Publishing, 2011) 72,84.

[2] ibid, 73,85.

[3] ibid.

[4] OECD, Implementing the OECD Guidelines for Multinational Enterprises: The National Contact Points from 2000 to 2015 (OECD Publishing, 2016) 30; UN Human Rights Council, ‘Report of the Special Representative of the Secretary-General on the issue of human rights and transnational corporations and other business enterprises’ (2008) UN Doc A/HRC/8/5 para.98.

[5] See for some ‘successful’ and ‘positive’ cases: US NCP, Specific Instance between the International Union of Food, Agriculture, Hotel, Restaurant, Catering, Tobacco and Allied Workers' Associations (IUF) and Starwood Hotels & Resorts Worldwide for conduct in the Maldives and Ethiopia (2016) <>  accessed 03 May 2018; UK NCP, Complaint by ADHRB against Formula One Group companies (2015) <>  accessed 03 May 2018; Norwegian NCP, Mediated Outcome between The Association for International Water Studies (FIVAS) and Norconsult AS (2015) <> accessed 03 May 2018.

[6] OECD (n 1) 79.

[7] ibid 85.

[8] Evaristus Oshionebo, ‘The OECD Guidelines for Multinational Enterprises as Mechanisms for Sustainable Development of Natural Resources: Real Solutions or Window Dressing’ (2013) 17 (2) Lewis & Clark L. Rev. 545, 580.

[9] OECD Watch, Remedy Remains Rare (2015) 37.

[10] Roel Nieuwenkamp, ‘Outcomes from OECD National Contact Point cases: More remedy than you may think!’ (Cambridge Core Blog, 2017) <>  accessed 03 May 2018.

[11] Brazilian NCP, Final Report-KINROSS Gold Corporation vs. Association of Neighborhoods of Paracatu (2016) <> accessed 03 May 2018.

[12] Above Ground and Justiça Global, Swept Aside: An Investigation into Human Rights Abuse at Kinross Gold’s Morro do Ouro Mine (2017) 11.

[13] ibid 29.

[14] Nieuwenkamp (n 10).

[15] UNGA Res 60/147 (16 December 2005) UN Doc A/RES/60/147.

[16] Brazilian NCP (n 11).

[17] Joint Statement by SOCO International PLC (‘SOCO’) and WWF (2014).

[18] OECD Watch, The State of Remedy under the OECD Guidelines (2018) 12.

[19] ibid 11-12.

[20] Dutch NCP, Final Statement on Bart Stapert, attorney vs. Mylan (2016) 3.

[21] ibid.

[22] Nieuwenkamp (n 10).

[23] See for examples of questioning of the NCPs: OECD Watch (n 9); Oshinebo (n 8); Scott Robinson, ‘International Obligations, State Responsibility and Judicial Review under the OECD Guidelines for Multinational Enterprises Regime’ (2014) 30 Utrecht J. Int'l & Eur. L. 68, 79; Bernadette Maheandiran, ‘Calling for Clarity: How Uncertainty Undermines the Legitimacy of the Dispute Resolution System under the OECD Guidelines for Multinational Enterprises’ (2015) 20 Harv. Negot. L. Rev. 205, 243.

[24] OECD Watch (n 18) 7.

[25] John Gerard Ruggie and Tamaryn Nelson, ‘Human Rights and the OECD Guidelines for Multinational Enterprises: Normative Innovations and Implementations Challenges’ (2015) 22 Brown J. World Aff. 99, 121.


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