Handling specific instances
The OECD National Contact Point system gives individuals, local communities and organisations a grievance mechanism when they believe that enterprises have failed to observe the guidelines for responsible business conduct. This makes the OECD Guidelines unique.
The NCP handles complaints against Norwegian enterprises and enterprises that operate in Norway.
The complaint mechanism is non-judicial. The NCP offers dialogue and mediation between the parties, and the goal of the process is to arrive at a joint solution. The handling of specific instances must be impartial, predictable, fair and in line with the Guidelines. The specific instances are handled in accordance with the procedures set out in the OECD Guidelines.
Complaints from A to Z
When a complaint is filed, the NCP first carries out an initial assessment: Does the complaint concern issues covered by the OECD Guidelines for Multinational Enterprises? Does the complainant have an interest in the matter or represent the impacted parties? Is the complaint documented? Will handling of the complaint contribute to resolving the matter? The NCP can ask the complainant to provide more documentation and clarification.
The company the complaint concerns is then given an opportunity to respond to the complaint, which is normally shared with the complainant. After receiving the company’s response, the NCP considers whether the criteria for accepting the complaint for further consideration are fulfilled. The NCP publishes its initial assessment of whether the complaint shall be accepted or not, and why. During this phase, the NCP does not consider whether the company has followed the recommendations set out in the OECD Guidelines.
SPECIFIC INSTANCE
Centre for Research on Multinational Corporations (SOMO), on behalf of 474 civil society organisations in Myanmar, vs. Telenor
In July 2021, the NCP received a complaint from the Centre for Research on Multinational Corporations (SOMO) on behalf of 474 civil society organisations in Myanmar. The complainants claim that Telenor ASA has failed to observe the OECD Guidelines with respect to risk-based due diligence, stakeholder dialogue and transparency in their disengagement from Myanmar. The complainants asked for the complaint to be given urgent consideration. In September 2021, the NCP published its decision to accept the specific instance and offer the parties dialogue and mediation.
Criteria in the initial assessment phase
When the NCP conducts an initial assessment of whether a complaint shall be accepted for further consideration, it must take the following into account:
- the identity of the party concerned and its interest in the matter.
- whether the issue is material and substantial.
- whether there seems to be a link between the enterprise’s activities and the issue raised in the specific instance.
- the relevance of applicable law and procedures, including court rulings.
- how similar issues have been, or are being, treated in other domestic or international proceedings.
- whether of the consideration of the specific instance would contribute to the purposes and effectiveness of the Guidelines.
See also the NCP’s procedures for handling specific instances for more information.
How to submit a complaint to the NCP
A complaint should be in writing and set out the factual grounds for the complaint, including a description of the issue, refences to relevant provisions in the OECD Guidelines and what the complainant(s) seek to achieve by submitting a complaint.
OECD Watch has developed a dedicated tool to enable potential complainants to check whether the OECD Guidelines are relevant to the issues they seek to raise with a company: OECD Watch Case Check. The tool also provides advice on which parts of the OECD Guidelines may be relevant to the complaint, the documentation that should be enclosed and which National Contact Point the complaint should be submitted to.
You will find more information and a guiding form for submitting complaints on the NCP’s website.
When the NCP accepts a complaint for further examination, the parties are normally offered dialogue and mediation. The goal is to discuss the issues raised in the complaint and arrive at a solution. The NCP or external mediators may conduct the mediation. If the parties reach agreement, the result will normally be set forth in a joint statement.
If the parties fail to reach agreement, or decline to participate in mediation, the specific instance will be examined by the NCP. Information from the parties and other sources may be used to inform the process. This will give the NCP a basis for considering whether or not the company has followed the recommendations set out in the OECD Guidelines.
SPECIFIC INSTANCE
Four trade unions vs. Norges Bank Investment Management
The NCP accepted parts of a new complaint for further examination in 2021. The complaint was filed by four trade unions: The International Union of Food, Agricultural, Hotel, Restaurant, Catering, Tobacco and Allied Workers’ Associations (IUF); the European Federation of Food, Agriculture and Tourism Trade Unions (EFFAT-IUF); Service Employees International Union (SEIU) and União Geral dos Trabalhadores (UGT).
The complaint concerns allegations of gender-based violence and harassment at McDonald’s, and related due diligence by two institutional investors: APG Asset Management (APG) and Norges Bank Investment Management (NBIM).
Norway’s NCP handles the part of the complaint that concerns NBIM. The parties accepted the offer of dialogue and mediation, and mediation was conducted by external experts on behalf of the NCP.
SPECIFIC INSTANCE
KTNC Watch and Workers Support Team vs. TotalEnergies, TotalEnergies EP Norge, Equinor, Technip Energies and Samsung Heavy Industries
Two South Korean organisations – Korean Transnational Corporations Watch and Samsung Heavy Industries Martin Linge Project Crane Accident Workers Support Team – submitted a complaint in 2019 involving businesses and NCPs in Norway, France, the UK and South Korea.
The complainant claims that TotalEnergies, TotalEnergies EP Norge, Equinor, Technip Energies and Samsung Heavy Industries have failed to observe the OECD Guidelines with respect to due diligence, disclosure of information and human rights.
Norway’s NCP is in charge of handling the European part of the complaint on behalf of the Norwegian, French and British NCPs. South Korea’s NCP wishes to handle the parts of the complaint that concern the Korean parties itself.
Norway’s NCP accepted the complaint for handling in May 2021, and offered the parties dialogue and mediation with external experts, which they accepted. As the pandemic prevented physical mediation, the NCP has organised online mediation with simultaneous interpreting and technical assistance. The case is complex in terms of content and the number of parties and NCPs involved.
SPECIFIC INSTANCE
The Committee Seeking Justice for Alethankyaw (CSJA) vs. Telenor/Telenor Myanmar
The Committee Seeking Justice for Alethankyaw (CSJA) submitted a complaint in 2019 against Telenor and its subsidiary Telenor Myanmar. CSJA claims that the military used an inactive telecommunications tower owned and operated by Telenor Myanmar to shoot unarmed civilians from the village Alethankyaw in Rakhine state in 2017. CSJA claims that the company failed to carry out the appropriate level of due diligence to prevent this. The complaint also concerned other matters related to land acquisition and a network closure in Myanmar.
The NCP decided to accept the complaint for further examination. The complainants declined dialogue or mediation with the company. The NCP has therefore obtained documentation from the parties and other sources. Based on this, the NCP will draw up a final statement that will include any potential recommendations to the company.
When a complaint is submitted, the NCP first carries out an initial assessment of whether it should be accepted for further examination:
The final phase in the handling of a specific instance entails the NCP drawing up a final statement.
If the parties reach agreement, the final statement will normally be based on a joint statement or agreement between the parties. If the parties fail to reach agreement and the NCP has examined the specific instance, the final statement will normally include an assessment of whether the company concerned has followed the recommendations set out in the OECD Guidelines. The NCP can issue recommendations to the company in the final statement. The parties may decide to only disclose parts of the agreement. The NCP publishes its final statement.
The NCP offers follow-up of specific instances within one year of conclusion of the case. The NCP currently has no specific instances under follow-up.
Ten groundbreaking specific instances
The NCP’s compendium of ten groundbreaking, international specific instances illustrates the possibilities the grievance mechanism represents. All of the cases selected have either led to some form of restitution or compensation for the complainant, or to the NCP issuing recommendations to the companies on how to operate responsibly in line with the OECD Guidelines.
Online mediation – Mediation during the pandemic
The pandemic greatly impacted the way meetings were held also in 2021, including for mediation. The NCP started mediation in one specific instance early in 2021, involving multiple parties in different regions and time zones. Physical meetings were not possible, and mediation was carried out via Zoom.
Many NCPs have carried out online mediation during the pandemic, and the NCPs have exchanged experience and learnt from each other. Norway’s NCP has found online mediation demanding. However, expedient technical assistance and professional mediators and interpreters have nonetheless made it work across languages, time zones and different opinions.
External mediators – new practice
The NCP increasingly makes use of external expertise in mediation between the parties in specific instances. The cases are often complex and it may be beneficial to draw on expertise with respect to mediation and the issues raised.
Through an informal collaboration with the National Mediator of Norway, the NCP has drawn on the experience of National Mediator Mats Ruland and mediator Nils-Henrik von der Fehr. The NCP has also recruited international experts to mediate in specific instances.
During 2021, the OECD has established a dedicated resource database where professional mediators can register their interest and assist in mediation for different countries’ NCPs.
A grievance mechanism that yields results
What can be achieved through dialogue and mediation? What criteria must be fulfilled for the NCP to accept a complaint? What solutions are available? These were the topics discussed at the NCP’s seminar on the grievance mechanism.
One of the tasks assigned to the National Contact Point system is to raise awareness among organisations, local communities and individualsthat they have a place to turn when they believe companies have failed to observe the OECD Guidelines. The seminar held at Litteraturhuset in Oslo on 1 November 2021 was an important element in this work.
OECD Watch is monitoring
The seminar gave participants from civil society organisations, trade unions, the business sector and academia the chance to hear interesting speakers who elucidated various aspects of the grievance mechanism.
Joseph Wilde-Ramsing gave the introductory talk on the possibilities and achievements of the grievance mechanism, exemplifying good practice in the NCPs’ handling of specific instances. He represents OECD Watch, a global network of organisations that helps civil society to use the grievance mechanism.
The first climate complaint
Peter Ras from the organisation Oxfam Novib and Arnaud Stuart from the international bank ING, both based in the Netherlands, provided unique insight into how the parties on both sides of the table may experience the complaints process.
They were involved in the first ever climate-related complaint in 2017. Oxfam Novib was one of four organisations claiming that ING, through its investments in fossil fuels, violated the OECD Guidelines. The result was a ground-breaking agreement, that saw ING committing to setting climate goals for its loan portfolio.
Good mediation
Professor Knut Kaasen at the University of Oslo and National Mediator of Norway Mats Ruland are involved in the mediation of a specific instance against a Norwegian company. They gave the participants an introduction to what makes for good mediation, and how trust can be built in cases where there is a great deal of distance between the parties at the outset.
The seminar concluded with group work, where the participants got the chance to have a go at submitting complaints, based on cases concerning environmental issues, indigenous rights and trade union rights.
