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OECD members and other countries that abide by the OECD Guidelines for Multinational Enterprises are required to establish a National Contact Point (NCP). NCPs do 3 things: 1) Promote the Guidelines 2) Respond to inquiries regarding the Guidelines 3) Help to resolve disputes between parties concerning the Guidelines in Specific Instances. Each country may organize the NCP in the manner it prefers so long as it is consistent with the Guidelines. Thus NCPs may exist within one government department, be composed of representatives from a number of bureaus, or include outside stakeholders from civil society and business. The Specific Instance Process If a person or group in a country that does not adhere to the Guidelines (like Cambodia or Burma) believes that a company has violated the Guidelines, they may file a “specific instance” complaint with the NCP in the country in which the company is based to ask for help in resolving the dispute. The NCP is supposed to work with all concerned parties to find a solution. Basic outline of the Specific Instance Process: 1) A complainant submits a complaint against a company that is based in a country that has agreed to abide by the OECD Guidelines. The complainant submits his or her complaint to that country’s NCP. 2) The NCP makes an initial assessment of whether the issues raised merit further examination and responds to the party or parties raising them. 3) If the complaint is accepted, the NCP consults with the parties involved and tries to facilitate a resolution to the problems between the complainant and the company. 4) After the mediation attempt the NCP will issue a final statement on the outcome of the complaint procedure. • If the parties involved do not reach agreement on the issues the NCP will still issue a statement, and may make recommendations on the implementation of the Guidelines. Strengths of the NCP System • NCPs offer a forum for discussion between businesses and other stakeholders such as international labor organizations, civil society groups, and NGOs. • In some countries, NCPs have been able to encourage some companies to change their behavior. o UK: NCP successfully mediated an agreement between a European human rights organization and a UK cotton merchant concerning the use of child labor in cotton farming in Uzbekistan. o Norway: NCP brokered an agreement between two Norwegian NGOs and a commercial fishing company concerning the environmental impact of salmon farming in Canada and Chile. • NCPs are important because the Guidelines are the only internationally accepted set of principles on human rights, the environment, and other important issues relating to corporate behavior with a built-in dispute resolution mechanism. Weaknesses of the NCP System • Since NCPs are not set up in a uniform manner, some NCPs may reach opposite conclusions on an issue or may be less capable than others in providing assistance in resolving a dispute. • Many NCPs are located in ministries that are responsible for promoting investment, which may result in a conflict of interest and/or inconsistent and arbitrary interpretation of the Guidelines. • Lack of funding and manpower in many NCPs limits their ability to respond effectively to complaints. This creates unjustified delays in the handling of specific instances. • Because the OECD Guidelines for Multinational Enterprises are non-binding, the NCPs’ mandate is limited, resulting in a lack of credibility and authority to mediate disputes.
The U.S. NCP The U.S. NCP, located in the State Department’s Bureau of Economic and Business Affairs. Since its 2011 revision, the U.S. NCP has released just two statements on the Specific Instance Process: 1) Feb. 2012: NCP declined to intervene in a dispute between a lead-poisoning awareness group and a US company concerning its manufacture and sale through its supply chain of lead abroad. 2) March 2012: NCP declined to intervene in a complaint brought by labor groups against a service company regarding a number of OECD Guideline violations because the groups were also involved in negotiations overseen by a federal mediation service. The U.S. NCP Specific Instance Process 1) Request: An interested party submits a written request including party names, details of the activities in controversy, specific parts of the OECD Guidelines at issue, resolution sought, and whether the NCP can share this information with the company. 2) Receipt: When the NCP receives a request, it will confirm its receipt to the sender, provide the incoming request and related materials to relevant U.S. agencies and other relevant NCPs, and review the information from the parties and from other sources. 3) Initial Assessment: The NCP then makes an initial assessment to determine whether: (1) the issue is bona fide and relevant to the Guidelines; (2) the issue merits further examination; and (3) it would be appropriate for the NCP to offer to assist the parties in resolving the dispute. • The NCP may offer its good offices to the parties and consult them on how to proceed. • If the NCP decides the issues raised do not merit further consideration or that offering its good offices would not contribute to a positive resolution of the issues, the NCP informs the parties and issues a public statement on its website. 4) Mediation: The NCP will encourage and offer mediation to the parties. If both parties agree to participate in efforts to arrive at a consensual resolution, the NCP will assist with mediation or otherwise facilitate third-party mediation. 5) Conclusion: At the end of the process, after consultation with the parties, the NCP will, in accordance with the procedural guidance, make the results publicly available in a final statement on its website: http://www.state.gov/e/eb/oecd/usncp/specificinstance/assessments/index.htm. Strengths of the U.S. NCP • In June 2011, the U.S. NCP revised parts of its procedures, including improvements with regard to timelines and parallel proceedings (i.e. whether the NCP will consider a specific instance when another body, like a court or administrative board, is already considering the issue). • As part of the 2011 revisions, the NCP also established a Stakeholder Advisory Board consisting of representatives from civil society, labor, business, and academia, which will provide recommendations on improving the functionality of the NCP. • The NCP team can consult with U.S. Government experts through an active interagency working group and has access to the assistance of the Federal Mediation and Conciliation Service. Shortcomings of the U.S. NCP • The U.S. NCP, like a number of NCPs, is situated in a bureau that is tasked primarily with the promotion of national business interests, creating a conflict of interest. It has no oversight body to ensure that it sticks to its own guidelines. • Unlike in the U.K. and Netherlands, the U.S. NCP imposes strict confidentiality on the parties to a specific instance from the moment that it decides to get involved, limiting the public impact of the process and preventing organizations from communicating with their constituencies. • Unlike in many other countries, the U.S. NCP will not, as a matter of policy, make any findings of fact with relation to specific instances. As a result, it cannot determine whether the company has complied with the Guidelines. In other countries, the possibility of an official finding of non-compliance has been a powerful tool for advocacy and a strong incentive for businesses to both cooperate with the process and comply with the Guidelines. • The U.S. NCP has few resources and just two dedicated staff members. • The U.S. NCP has not made itself accessible (or even known) in places like Southeast Asia, where groups might be able to benefit from effective promotion of the OECD Guidelines.
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