OECD Guidelines for Multinational Enterprises

1. OECD Guidelines for Multinational Enterprises Serena Lilywhite

2. What are the OECD Guidelines for MNE’s? • Voluntary principles & standards to promote corporate responsibility • Legally binding on countries but not companies • Based on international treaties & conventions • Do not override national laws • Governed by the OECD Investment Committee – Declaration on Int. Investment • Promoted & implemented by Governments via National Contact Points (NCP’s)

3. What do they cover? • Concepts & principles, e.g. ownership, size of enterprise, equity of treatment • General policies, e.g. Contribute to sustainable development, but most importantly “risk based due diligence” and reference to business relationships, suppliers & subcontractors”. • Disclosure • Human rights • Employment & industrial relations • Environment • Combating bribery • Consumer interests • Science & technology • Competition • Taxation

4. Who do they apply to? • Recommendations for responsible business conduct for large & small enterprises involved in trade & investment – inc. financial institutions • Approved by government to MNEs operating in, or from, the territories of adhering countries • 34 adhering OECD member countries • 12 non - OECD member adhering countries – BUT not China / India • Directed at MNE’s via signatory countries – companies do not sign on • • Applicable to companies in or from these countries + • their business relationships • • This includes subsidiaries, joint ventures, suppliers and • investors • QUESTIONS?

5. What makes them unique? • Only multilateral code that OECD governments have agreed to promote • Tripartite support • BIAC/ TUAC/ Government • OECD Watch • National Contact Point Structure • Promotion of Guidelines to business • Handling Specific Instances - Cases • Complaint mechanism – Non Judicial • There is someone responsible for investigating violations • Option for NGO advocacy • Hold companies to account via state

6. The complaint mechanism • An individual, NGO or trade union can make a complaint • 2 phases: initial assessment & specific instance • Complaint acceptance means the NCP thinks there is enough evidence to investigate / mediate • Can be an ad hoc process -– • Company can choose not to participate • Confidentiality during process • Mediated outcome is the objective • NCP must issue a final statement & make it public • No appeal process & no follow up – but can appeal process (not decision)

7. Using the complaint mechanism • There can be benefits to filing a complaint: • Be prepared • What do you hope to achieve? • See OECD Watch Case Check on line • http://oecdwatch.org/oecd-watch-case-check/case-check

8. The Initial Assessment Phase • This is the first step / investigation by the NCP • The objective is to review the complaint material submitted by the NGOs and decide if there is enough evidence of non-compliance with the Guidelines • This stage is unlikely to include assessment of alleged breaches • The NCP may meet with the NGOs (complainants) and the company at this stage to seek clarification • The NCP may request more information from either party • The NCP may limit the scope of a complaint • You can continue to campaign

9. The Specific Instance Phase • Second phase • If a complaint is accepted as a specific instance it means the NCP thinks there is enough evidence to warrant further investigation. • NCP can seek information from others • NCP can do a country visit for fact finding – not common • Can be a lengthy process • Confidentiality applies

10. What Happens in Mediation? • Mediation is a discussion between the company & NGO/ TU, with the NCP trying to facilitate an agreed outcome • You may be asked to prepare an opening statement • Are you prepared to mediate? • Know what you are prepared to compromise on • Know what you will be prepared to accept • If there is a new & relevant development – make this known in advance QUESTIONS?

11. The NCP Final Statement • Quality varies • NCP must issue final statement at end of complaint process, and make it public • Many NCPs refuse to state if Guidelines breached, or withhold aspects of complaint • Ensure final statement does not include conclusions based on information you have not accessed • Final statement should document where agreement was reached and not reached. • Ask to see draft final statement – full disclose of issues, parties, breaches and outcome is the aim • If no mutually agreeable outcome, NCP must still issue a statement. Few NCPs will determine if Guidelines breached • Include recommendations to companies

12. Follow up and Communication • There is no appeal or follow up mechanism • You can contact OECD Investment Committee if NCP ineffective and inactive • There is no guaranteed compensation or remedy • When the case is concluded you can put out a press release, but you cannot disclose information or conversations from the case (unless already in public domain) • You can continue dialogue directly with the company, and campaign, but may get pressure to stop e.g. • G-Star case - Gopinath

13. Remedy Remains rare - cases

14. Steps to filing a complaint (things for you to do) Consider a complaint Complete the feasibility questions Identify desired outcomes Write the complaint Filing the complaint and mediation Closing the case, monitoring and follow up

15. Consider a complaint There can be benefits to filing a complaint if you enter into the process properly prepared and with a clear view of what outcome you hope to achieve. • Mediated outcome • Attract media attention • Put additional pressure on the company from consumers, investors, or government officials • A complaint can be one of various strategies pursued simultaneously, e.g. media, lawsuit, other grievance mechanism • An OECD Guidelines complaint process is time and resource intensive

16. Complete the OECD Watch on Case Check • What is the main company • Are there any business relationships you also want to hold accountable in the complaint? • Which NCP do you go to? • Which OECD Guidelines have been breached? • What is your interest in the complaint? • What evidence do you have? • What are your demands from the company / NCP?

17. Identify desired outcomes • Some issues are more suitable for mediation than others • Have a clear idea which issues are or are not negotiable for you? • Continually assess what an ideal outcome would be versus an acceptable or useful one

18. Closing the case, monitoring and follow up • Make sure the NCP correctly represents your position in the final statement • Lobby the NCP to include a determination of breaches and recommendations for the company in its final statement • Lobby the NCP to follow up on its final statement • Also if the NCP refuses to follow up on the case, it is advisable to keep a close watch on the company • Determine how you can use the outcome of the final statement to advance your case

19. http://oecdwatch.org/oecd-watch-case-check

20. Questions / issues for the ANCP? • Salween Dam – SMEC • Will the ANCP do a fact finding visit? • How will the ANCP engage with complainants if based in Myanmar, Cambodia, Nepal, Fiji etc? • Others?