February 24, 2014

Submitted to the U.S. State Department Advisory Committee on International Economics

Mr. Ted Kassinger
O’Melveny & Myers, LLP
Chair, ACIEP

Thea Lee
Deputy Chief of Staff
AFL-CIO
Vice Chair, ACIEP

Dear Ted and Thea:

Please find attached the initial Report of the U.S. State Department Stakeholders Advisory Board (SAB) on Implementation of the OECD Guidelines for Multinational Enterprises for consideration by the Advisory Committee on International Economic Policy (ACIEP).

We are pleased that the Report received the approval of the entire SAB and is submitted on behalf of the following members, which include representatives from Civil Society, Business, Labor and Academia:

Owen Herrnstadt, Co-Chair
Trevor Gunn, Co-Chair
Barbra Anderson
Michael Bride
Brian Campbell
Lance Compa
Celeste Drake
Kristen Genovese
Adam Greene
Clifford Henry
Jonathan Kaufman
Ray Marshall
Sarah Singh

We hope that the Report will be placed on the agenda at our next ACIEP meeting. We look forward to continuing the work of the SAB and thank you for your gracious support of our activities.

Sincerely,

Owen Herrnstadt
Trevor Gunn


I. Background, Mandate and Working Methods of the SAB

The United States adheres to the Organization for Economic and Cooperation Development (OECD) Declaration on International Investment and Multinational Enterprises (2011), which contains the OECD Guidelines for Multinational Enterprises (OECD Guidelines or Guidelines). As stated by the U.S. State Department, “Governments adhering to the Guidelines each have a National Contact Point (NCP), whose main functions are to: (1) promote awareness of the Guidelines to business, civil society, and the general public; and (2) work with business, civil society and the public on all matters relating to the Guidelines…”[1]

In September 2010, the U.S. State Department requested the Investment Subcommittee of the Advisory Committee on International Economic Policy (ACIEP) to conduct a review of the operation and organization of the NCP. The Investment Subcommittee conducted its review over the next several months and submitted its report, which included recommendations to the ACIEP. The ACIEP submitted the report to the State Department in January 2011.[2]

At the June 20, 2011, ACIEP meeting, Assistant Secretary Jose Fernandez announced that the State Department accepted the Investment Subcommittee’s consensus recommendations.[3] Those recommendations included a periodic review of the procedures of the NCP, the promotion of the Guidelines, and other technical or procedural issues with which the NCP requests guidance. At the September 13, 2011, ACIEP meeting, he announced that he would establish a Stakeholder Advisory Board (SAB), a subcommittee of the ACIEP, to fulfill the above tasks.[4]

Assistant Secretary Fernandez and ACIEP Chairman Ted Kassinger subsequently invited Owen Herrnstadt, International Association of Machinists and Aerospace Workers Chief of Staff to the International President and Trevor Gunn, Medtronic Managing Director for International Relations, to serve as the SAB Co-Chairs. Fernandez and Kassinger asked the Co-Chairs to conduct a search process to identify a diverse group of representatives from businesses, civil society, and academia to serve on the SAB.[5]

On January 31, 2012, the Assistant Secretary announced the 12 board members that were selected from a diverse group of individuals, including four from business, two from labor, two from the environmental community, two from civil society (includes human rights representatives), and two from academia.[6]

The Terms of Reference for the SAB directs the SAB to “transmit reports, findings, recommendations, etc. to the ACIEP which will submit such information to the State Department for consideration.” The substantive Terms of Reference describe four general areas of information that is requested concerning: 1. Structure and Monitoring of the U.S. NCP; 2. Promotion of the Guidelines; 3. Proactive Agenda for the U.S. NCP, and; 4. Handling of Specific Instances. The full Terms of Reference for the SAB are attached to this report. The SAB gathered facts and deliberated during several sessions it convened beginning in March 2012. In general, meetings were held for either two or three hours. For the first several months, the SAB concentrated on learning from the NCP about the activities it has undertaken with respect to its procedures, promotional activities and proactive agenda.

The SAB also gathered information from the NCPs, or their representatives, of the Netherlands, Canada, Norway and the U.K., who graciously participated by telephone. (The U.K. NCP met with the SAB in person and by telephone). The Compliance Advisor/ Ombudsman (CAO), the grievance mechanism for the World Bank Group’s International Finance Corporation (IFC) and Multilateral Insurance Guarantee Agency (MIGA), also participated in one meeting, sharing its procedures with respect to its own apparatus. The SAB also heard from other federal agencies about their activities with respect to the NCP.

The Report addresses many of these matters in the following four sections: 1. Structure and Monitoring of the U.S. NCP; 2. Promotion of the Guidelines; 3. Proactive Agenda for the U.S. NCP, and; 4. Handling of Specific Instances.

The Co-Chairs of the SAB thank members of the SAB for their hard work, diligence and constructive exchanges. Members share many recommendations and considerable effort was made to reach consensus on various topics. As the Report reflects, there are a number of issues where there remain divergent views. It is the opinion of the Co-Chairs that understanding these differences and the rationale for them is as critical to the work of the State Department as is understanding areas of general agreement.

II. Structure and Monitoring of the U.S. NCP

A. NCP Staffing Issues

Current Status

  • The NCP office increased in size from no dedicated staff to two full-time staff for a period of time.
  • The NCP currently consists of one staff member who also has responsibility for non-NCP matters.
  • The NCP took steps to formalize the Inter-Agency Advisory Group.

Observations

Prior to the reorganization of the NCP, the functions of the Office of the NCP were carried out by staff with other duties in the Bureau. When the new NCP procedures were unveiled, it was announced that it would be filled by two full-time staff members, including one staff member from the Bureau of Democracy, Human Rights and Labor (DRL). The NCP functioned under this arrangement for several months. This summer, a new NCP was named. Her responsibilities as NCP have been combined with other responsibilities. The second staffer who had served with the NCP has since ceased to serve in that position. Recently, the NCP has moved to another position for the next several months. The NCP position is now filled by another State Department official until her return.

The NCP has concluded some older pending Specific Instance requests, but continues to process a number of open requests. The SAB understands that in multiple Specific Instances, the previous NCP was required to recuse himself, and that the second staff member handled those Specific Instances in his place.

Recommendations

  • The NCP should be adequately staffed to ensure that it is capable of carrying out an expanding promotional role, developing and pursuing items on the proactive agenda, and handling Specific Instances. The SAB is particularly concerned that the office should maintain its capacity to resolve Specific Instances when the NCP is required to be recused. The availability of a second staff member for several months meant that, for a period of time, a skilled practitioner who was familiar with the Guidelines and procedures of the NCP was able to fill in when such situations arose.
  • The NCP should be staffed with personnel who have a familiarity with dispute resolution mechanisms and an understanding of the human rights, environment, employment and industrial relations, bribery, consumer, and other issues that are addressed in the Guidelines.

B. Accessibility

Current Status

The NCP has posted contact information on the NCP website and has developed and made available a range of resource materials, including:

  • U.S. NCP Fact Sheet;
  • Bureau of Economic and Business Affairs Corporate Social Responsibility Team Fact Sheet; and
  • U.S. NCP Procedures for Specific Instances under the OECD MNE Guidelines.
  • The NCP has also translated its Procedures into Spanish and French.

Observations

As recognized by the Commentary on the Implementation Procedures for the OECD Guidelines, the accessibility of an NCP to affected groups and stakeholders is critical to its effectiveness.[7] Various obstacles, ranging from language barriers to resource constraints, can prevent access to an NCP by intended users, thereby undermining the NCP’s successful operation. It is important therefore for the U.S. NCP to ensure adequate accessibility to all of its activities, including its specific instance process.

One barrier to accessibility that could confront many potential users of the U.S. NCP is that they may not be fluent in English or the documents supporting their claims may not be available in English. For instance, in the Edouard Teumagnie/AES Corporation complaint, the requester had to translate documents into English in the course of the specific instance process.[8] In this Specific Instance, it is unclear what the U.S. NCP would have done if the requester had lacked the resources to translate all supporting documents into English.

Academic, labor, environment and civil society SAB members observed that another potential barrier to accessibility arises where the individual, community, or organization submitting a Specific Instance request is unfamiliar with the language of the Guidelines and therefore is unable to explain exactly which provisions of the Guidelines are implicated. These members noted this is most likely to occur where a requesting party wishes to seek the good offices of the NCP directly, without the assistance of U.S.-based or international non-governmental organizations or trade unions. They noted that to date, when presented with Specific Instance applications that are unclear in this respect, the NCP has engaged in dialogue with the requesting party to clarify the party’s intent.[9]

They commented that it is, however, unclear what the NCP would do if the party were unable to provide such clarification.

Business SAB members disagreed with the above observation. They believe that asking the party to state which element of the Guidelines is at issue is not a barrier in any way.

Recommendations

  • The NCP should clarify what steps it will take to ensure accessibility if the requesters do not speak English or do not have the resources to translate documents into English.[10]
  • Academic, labor, environment and civil society SAB members recommend that the NCP should provide assistance and guarantee translation services where necessary to enable proceedings to be conducted in the language in which requesters are most comfortable.
  • Business SAB members disagreed with the above recommendation. They believed that the NCP should consider providing assistance with translation where required, taking into consideration its available resources and other priorities.
  • Academic, labor, environmental and civil society SAB members recommend that, based on their observations, because some communities in areas where OECD-based MNEs operate may not have access to the Guidelines or may struggle to interpret particular chapters or parts of the Guidelines, the procedures should clarify the NCP’s approach in situations in which the requester does not identify particular sections of the Guidelines at issue. For example, consistent with U.S. NCP Procedures for Specific Instances under the OECD MNE Guidelines, the U.S. NCP should make clear that it will not reject a Specific Instance Request simply due to a failure to note the applicable chapters or provisions of the Guidelines;[11] rather the NCP should clarify that it will further communicate with the requester to determine whether the request in fact describes an issue related to the OECD Guidelines.
  • Business SAB members disagreed with the above recommendations. They believe that this is a hypothetical problem and that removing this aspect would let anyone complain without ever having to link it to the Guidelines.
  • The U.S. NCP’s procedures should explicitly allow and explain how requesters can amend, update, or supplement requests if new information that was unavailable or unknown prior to filing, and that is relevant to the initial issues raised under the Specific Instance, subsequently becomes available.[12]

C. Transparency and Confidentiality

Current Status

  • The NCP has established procedures calling for strict confidentiality of Specific Instance proceedings.
  • The NCP has begun to publish Final Statements from each concluded Specific Instance.

Observations

The SAB held extensive consultations and discussion on the subject of confidentiality in the context of Specific Instance proceedings. The NCP considers confidentiality to be a matter of “good faith” of the participants, and a breach of confidentiality can be grounds for discontinuation of a Specific Instance. The NCP expects both parties to keep all Specific Instance documents confidential, including the original complaint, and also to maintain strict confidentiality about the proceedings. It is not clear that public release of a Specific Instance complaint is sufficient grounds under all circumstances to discontinue the NCP’s involvement, but the NCP has a “strong preference” that the complaint should be kept confidential, as the NCP deems it important to establish a safe space for mediation.

The issue of transparency was a highly contentious one for the SAB. In general, academic, labor, environmental and civil society participants noted that while confidentiality during a mediation session is necessary for a successful outcome, it would be more in keeping with the Procedural Guidance to the OECD Guidelines to allow more transparency of key complaint documents and NCP procedure. These participants also reported that at least some civil society and labor organizations are unable to participate in the Specific Instance process because their norms of procedure require greater transparency toward their members than the NCP allows.

By contrast, business participants in general believed that disclosure of the complaint and other aspects of the NCP proceedings can damage the prospects for mediation, particularly if they are linked to public campaigns against the company by related organizations. Business representatives reported that in at least one submission, the requesting party in a Specific Instance had used information from inside the Specific Instance proceedings as a platform to attack companies publicly.

In an effort to compare NCP procedure on this point and others, the SAB held in-person meetings and teleconferences with the NCPs of the United Kingdom, Norway, Netherlands, and Canada. All four of these NCPs acknowledged that publicity and smear campaigns can make mediation more difficult and that they prefer for parties to not engage in such tactics. They collectively viewed the issue as manageable, however, and none of them took measures such as requiring that requesters keep the text of their Specific Instance complaints confidential. None of these NCPs had policies indicating that they would terminate their involvement in a Specific Instance if a party were to make its complaint public.

The Norwegian NCP noted that it follows a regular practice of publishing Specific Instance complaints in their entirety when the NCP releases its decision to accept or reject a complaint.[13] Additionally, to varying degrees, the Norwegian, Netherlands and U.K. NCPs all publish information about current and past Specific Instances on their websites, on many occasions going beyond the minimum requirement that they publish a final statement for each complaint. Moreover, the procedures of both the Norwegian and U.K. NCPs specify that they will post initial assessments on their websites.[14]

Recommendations

  • All of the academic, labor, environmental and civil society participants suggested that the NCP should revoke its rule requiring parties to refrain from publishing the complaint in Specific Instances. They believed that because the Specific Instance procedure is non-binding, complainants should be free to publish their complaints, and companies should be free to walk away from a Specific Instance process if they believe that the complainant’s actions have not been in good faith. In addition, they respected the importance of the responsibility of representative organizations to communicate with their members. They also concluded that the NCP should maintain flexibility in exercising the power to discontinue proceedings if parties act in bad faith and note such acts of bad faith in a Final Statement. This was based on the observation that other NCPs that have successfully resolved Specific Instances have not found it necessary to withhold complaints from the public.
  • The business participants believed that the NCP’s current rule with respect to publication of the complaint is appropriate and should be maintained. They believed that the experience of other countries’ NCPs could not necessarily be adapted to the unique U.S. context. They concluded that flexibility in the NCP’s approach to this matter would lead to abuse by complainants and would not be conducive to dispute resolution.
  • The academic, labor, environment, and civil society participants held the position that the NCP should provide more information about Specific Instance proceedings on its website, including initial assessments, as do the U.K. and Norwegian NCPs.
  • The business participants held the position that the NCP’s current level of transparency on Specific Instances is appropriate and that broader disclosure of documents would be counterproductive.

III. Promotion of the Guidelines

A. Audiences

Current Status

In the past, the NCP’s promotional activities have been focused on the business community. The NCP is seeking the SAB’s assistance in identifying other audiences and stakeholder groups as well as suggestions regarding the information that should be shared with them concerning the Guidelines and the NCP specific instance process. The NCP is also seeking advice on how to make that information accessible and relevant to the target audiences. This Report categorizes these issues under the following three topics:

1. Audiences;

2. Messaging; and

3. Medium

Observations

  • Many businesses are either completely unfamiliar with the Guidelines or have heard of them, but do not understand their contents or relationship to other international standards (like those adopted by the International Labor Organization, the 1998 Declaration of Fundamental Principles and Rights at Work, and the UN Global Compact).
  • Multinational enterprises (MNEs) with little or no experience in developing internal corporate social responsibility programs do not receive special attention from the NCP.
  • Non-business groups like labor, NGOs, environmental, community organizations and others in civil society, which have a direct stake in the Guidelines, receive little or no attention from the NCP with respect to promotional activities.

Recommendations

  • In order to expand audiences for promotional activities, the NCP should consider attending CSR-oriented conferences.
  • It should also consider attending a variety of conferences attended by stakeholders on relevant topics, involving human resources, business, marketing, consumers, supply chains, procurement (including federal contracting), labor, employment, environment, and development, to name a few.
  • The NCP should create a database of contacts based on groups and individuals attending these conferences. This database can be used for future outreach and distribution of information related to the Guidelines.
  • The NCP should also promote the Guidelines by attracting additional audiences that can be reached through the work of other federal government departments and agencies.
  • While it is essential for the NCP to reach out to the business community, it is just as important that the NCP reach out to other groups including, labor, environmental, and community based organizations that could potentially be affected by MNEs subject to the Guidelines.[15]
  • The NCP should especially emphasize outreach to trade unions and NGOs that work with communities in developing countries, who may be most likely to feel the impacts of Guidelines violations and least likely to have access or knowledge of the U.S. NCP.[16] Moreover, outreach should target both adhering and non-adhering countries, given that many MNEs from adhering countries operate in non-adhering countries.[17] The NCP may want to consider conducting joint outreach with mechanisms such as the CAO, which have significant experience reaching out to groups in developing countries. As described below, outreach should include distribution of easily understood informational materials.

B. Messaging

Observations

  • The NCP lists on its website procedures for specific instances under the Guidelines, as well as a brief explanation of its function. The procedures for Specific Instances, and the text of the Guidelines, are available in English, French and Spanish.
  • The NCP does not list on its website, nor does it seem to distribute, substantive information explaining the Guidelines to its audiences.
  • The NCP also does not provide any educational or training tools with respect to the standards that are referenced in the Guidelines.

Recommendations

  • A communication plan should be built, starting with the question, “What are the objectives of promoting the Guidelines and what needs to be achieved?”
  • When developing the communication tools, it is important for the NCP to acknowledge that different audiences will require different messages. The NCP should create customized messages for each of the key stakeholder audiences. For example, SMEs may require more education about CSR and how to implement the Guidelines, whereas MNEs may just need ready-made materials to distribute from their headquarters to their international locations. Materials should be written so that they can be understood by a variety of audiences, in multiple languages with varying levels of education.[18] Audiences should also have a basic understanding of the OECD and the Guidelines by accessing links to ILO standards, OECD Declaration on Investment and other sources of information.
  • The NCP should ensure that businesses, labor unions, environmental groups, community organizations and others in civil society learn about the actual contents of the Guidelines, and not just that the Guidelines exist. In doing so, the NCP should consider creating and distributing an “executive summary” of the principles of the Guidelines in easy-to-understand terms and in a variety of languages, in order to encourage the Guidelines to be more widely read and understood.
  • Materials should be developed and distributed that reflect the use of the Guidelines as a means to promote responsible business conduct, and not simply to promote the Guidelines per se. The NCP should also consider including a brief overview about, “Why responsible business conduct is good business”, and make it easily accessible in multiple places. Additionally, since one key message is that the Guidelines are an authoritative benchmark of governmental expectations on responsible business conduct, the NCP could consider creating a benchmarking worksheet for SMEs and MNEs to self-evaluate their organization against the Guidelines. These relatively simple self-assessment “checklists” would proactively provide businesses with a sense on whether they are meeting the Guidelines or not.
  • In describing and explaining the Guidelines to all audiences, the NCP should make generous use of materials developed by other organizations, like the International Labor Organization, which provide further explanation of the standards reflected in the Guidelines.
  • The NCP should create a reference piece to frame the Guidelines as an important tool among many complementary tools (such as ILO, GRI, Global Compact, sector activities, etc.) that MNEs can use to help develop their own programs and activities. The NCP should be prepared to address how the Guidelines relate to these other tools.
  • The NCP should also utilize the Guidelines to educate and engage stakeholders with the goal of resolving potentially negative situations before they become complaints.
  • In its outreach efforts, particularly in outreach to labor organizations, environmental groups, non-governmental organizations and community based organizations, the NCP should widely distribute its rules of procedure, accompanied by a detailed, easily understood guide to filing requests and what to expect once a request has been filed.[19] The guide to filing requests should be made available in a variety of languages. These groups should have information about how businesses are expected to apply the Guidelines and about how they can respond if they believe that an MNE’s activities have been inconsistent with the Guidelines.
  • Resources should be provided on the merits of mediation, including its value in facilitating discussion and resolution of conflicts. The training should also include responses to frequently asked questions and an online database that is continually updated.
  • The NCP should develop a method for measuring the effectiveness of its efforts in achieving the tasks referenced in this section. This information can provide a sense of how messaging is translating into business action. It can also provide the NCP with valuable data with which to make decisions regarding future communications.

C. Medium

Observations

  • The NCP currently has information regarding the Guidelines posted on its website.
  • This information includes material regarding specific instances.
  • The NCP has also participated in limited outreach to some stakeholder groups.

Recommendations

  • Design communication packages for distribution by MNE’s U.S. corporate headquarters to be internally distributed to their international subsidiaries.
  • Create opportunities for businesses, worker organizations, including unions, environmental groups, civil society, and community organizations to learn about the Guidelines: e.g. seek speaking opportunities at forums, roundtables, conferences, etc.
  • Promote the Guidelines in business, supply chain, CSR-specific, worker organization, labor, environmental, civil society and community based organizations’ publications, websites, blogs, social media, webinars, etc.
  • All materials available on the website should be easily downloadable for individuals who do not have frequent internet access.
  • All information regarding the NCP’s procedures and requirements for filing a complaint should be compiled into one document for easy printing and distribution to communities with little or no Internet access.[20] Rules of procedure and instructions for filing a request should be translated into major world languages to increase the accessibility of the U.S. NCP to non-English speaking communities and individuals.[21]
  • “Promote” the Guidelines by doing – e.g. using the proactive agenda to create workable solutions to address current problems.
  • Ask enterprises to endorse or say how they have used or promoted the Guidelines.
  • Enterprises can assist by ‘being the voice’ or ‘telling the story’ to share how they apply the Guidelines in their communications.
  • In addition to including the Guidelines in trade mission topics, there are a number of opportunities to strategically use U.S. Embassies, including: implementing Guideline awareness training at each U.S. Embassy and creating a promotional role in each U.S. Embassy to generate awareness among business, labor, NGOs, civil society, environmental and other groups. This effort could provide coaching for in-country companies regarding responsible business conduct.
  • U.S. Embassies could also encourage SMEs and MNEs to aspire to become nominated for the State Department’s Award for Corporate Excellence (ACE). The ACE Award emphasizes the important role U.S. businesses play to advance best practices, good corporate governance, and democratic values overseas and links closely to sections in the Guidelines. The ACE Award is an opportunity for the NCP and Embassies to reinforce the content in the Guidelines to SMEs and MNEs, serving as a goal for businesses. It is also an opportunity to promote the Guidelines in public ACE Award communications and at the Award ceremony.
  • Some members believe that the NCP, in working with others at the State Department, could ask that previous winners promote the ACE Award as a sort of “seal of approval” and the Award’s relation to the Guidelines on their websites and in their marketing materials.
  • Academic, labor, environmental and civil society SAB members believe that stakeholders must be able to weigh in during the selection process for the ACE Award, particularly when there has been a complaint filed with respect to the company that is under consideration. They further believe that no company who is subject to labor, environmental or human rights complaints of any type should be given the Award.
  • Understanding that the NCP has limited resources, its promotion implementation plan should focus on the next steps that will generate the greatest impact.

IV. Establishing a Proactive Agenda for the U.S. NCP

Current Status and Observations

  • In establishing the proactive agenda, the OECD Investment Committee established that it would work with a variety of stakeholders, “in order to encourage the positive contributions that multinational enterprises can make, in the context of the Guidelines, to economic, environmental and social progress with a view to achieving sustainable development, and to help them identify and respond to risks of adverse impacts associated with particular products, regions, sectors or industries.” The Committee specifically required that NCPs: “should maintain regular contact, including meetings, with social partners and other stakeholders in order to:

a. consider new developments and emerging practices concerning responsible business conduct;

b. support the positive contributions enterprises can make to economic, social and environmental progress;

c. participate where appropriate in collaborative initiatives to identify and respond to risks of adverse impacts associated with particular products, regions, sectors or industries.”

  • The Guidelines recognize that, “Enterprises have also promoted social dialogue on what constitutes responsible business conduct and have worked with stakeholders, including in the context of multi-stakeholder initiatives, to develop guidance for responsible business conduct.” They also state that Enterprises are “… encouraged to participate in private or multi-stakeholder initiatives and social dialogue on responsible supply chain management, such as those undertaken as part of the proactive agenda pursuant to the Decision of the OECD Council on the OECD Guidelines for Multinational Enterprises…”

Recommendations

  • The SAB recommends that the U.S. NCP work with the SAB to develop a proactive agenda aimed at identifying and proposing solutions to emerging issues that are of interest to U.S. business, labor, environmental, NGOs, civil society and community organizations.
  • A multi-stakeholder process should be utilized throughout the effort.
  • A trained facilitator should be used at multi-stakeholder meetings to facilitate identifying specific actionable steps and implementation measures.
  • In order to promote the proactive agenda and the multi-stakeholder process, it is important that the initial issue to be worked on be a significant emerging opportunity with adverse impacts, have a good chance of success, be one that U.S. business and other stakeholders can make a significant contribution to resolving, and finally be considered to be a priority, especially by business since they will have to implement the recommendations from the stakeholder engagement process. It is expected that a favorable outcome of the first issue would result in this process addressing other issues.

V. Handling of Specific Instances

A. NCP Procedures at the Initial Assessment Phase

Current Status

  • The NCP has published its guidelines and procedures for the inquiries and assessments it will undertake at the Initial Assessment phase.[22]
  • The NCP has adopted an approach to handling specific instances submissions when the issues raised are also being considered in another forum – so-called “parallel proceedings” – that mirrors the Procedural Guidance to the OECD Guidelines.

Observations

The SAB notes that the NCP’s performance as to the ministerial aspects of the Initial Assessment phase has greatly improved since the revision of the NCP’s procedures in 2011. Complainants have received acknowledgments of receipt from the NCP, and Respondents have received timely notification of the institution of specific instance proceedings. Communication in general appears much smoother and more satisfactory to both sides.

Discussion within the SAB of the NCP’s procedures and practice at the Initial Assessment phase focused on six issues:

  • The NCP’s course of action in the face of delayed responses from a responding party;
  • The NCP’s procedures for handling of Specific Instances in submissions involving parallel proceedings;
  • Whether the NCP should be able to dismiss Specific Instance submissions at the Initial Assessment phase based on failure to exhaust local remedies;
  • Whether the Procedural Guidance contemplates a pre-Initial Assessment phase at which Specific Instance submissions can be dismissed for various reasons;
  • Whether the NCP may exercise its good offices even when the Respondent declines to engage; and
  • Whether the NCP should rely on outside sources and/or conduct site visits at the Initial Assessment phase.

The SAB inquired into the steps the NCP takes in order to ensure that the parties reply promptly and comply with target timelines. In at least one instance, the NCP reported having resorted to informing the corporate respondent that the NCP would issue a Final Statement in which that party’s non-cooperative approach would be highlighted. In a presentation to the SAB, representatives of one NCP said that they had used the threat of a public statement as an inducement for the corporate respondent to participate. All of the academic, labor, environmental and civil society SAB participants considered that if the NCP were to outline its course of action when faced with delayed responses as a matter of policy, it might avoid such situations. Conversely, the business members of the SAB noted that Guidelines are a voluntary procedure and that parties may not be compelled to participate.

With respect to parallel proceedings, the SAB considered whether the current policy is sufficient, or whether the NCP should instead adopt a more detailed and specific approach, such as that of the U.K. NCP.[23] Discussion at the SAB centered on whether the U.K. procedures offered better clarity by establishing a general presumption that the U.K. NCP can proceed despite the existence of proceedings in other forums, or whether they would unduly encourage notifiers to file multiple complaints in different forums. During a presentation to the SAB, however, representatives of the U.K. NCP asserted that they see few complaints presenting parallel proceedings. For several of the SAB members, this suggests that the U.K. procedures do not unduly encourage multiple filings. Business members of the SAB do not agree with this observation.

With respect to exhaustion of local remedies, some members of the SAB were concerned that the U.S. NCP had dismissed one Specific Instance at the Initial Assessment phase, at least in part because it concluded that the notifier should have instead taken his complaint to the local courts in India.[24] Discussion on this point centered on whether dismissal of Specific Instance complaints based on a failure to “exhaust” local remedies is consistent with the Guidelines. Some felt that the NCP should be free to conclude that a notifier should have taken his complaint to the local courts first, while others strongly disagreed. All participants recognized that neither the Guidelines nor the Procedural Guidance provides express support for an exhaustion requirement, and that complainants from non-adhering countries are allowed to file Specific Instance complaints in the home country of a multinational corporation.

With respect to actions at the pre-Initial Assessment phase, it was noted that the NCP has closed complaints with Final Statements that left unclear whether an Initial Assessment had been conducted. In one instance, for example, the NCP closed the complaint because the Respondent was unwilling to engage, but did not specify if the complaint had been assessed to determine whether it had been properly submitted and substantiated as called for by the U.S. NCP’s Specific Instance procedures.[25] Discussion focused on whether the NCP can dismiss Specific Instance complaints without conducting an Initial Assessment. All participants agreed that neither the Procedural Guidance nor the U.S. NCP’s procedures mention dismissals prior to the Initial Assessment.

With respect to the NCP’s continuing role when the Respondent declines to engage, it was noted that in a number of submissions, the NCP has concluded its involvement in a Specific Instance upon deciding that mediation was unlikely to occur.[26] Discussion focused on whether the NCP might have other options to assist in resolving a dispute, even when mediation is impossible, and whether this function is contemplated by the Procedural Guidance to the OECD Guidelines.

With respect to the NCP’s reliance on outside sources during the Initial Assessment, it was noted that on several occasions, the U.S. NCP has relied on other governmental entities to gather facts and clarify the situation on the ground in the context of the Initial Assessment phase. Discussion focused on whether this was appropriate and on whether the NCP could, under some circumstances, consider conducting a site visit during an Initial Assessment.

Recommendations

The SAB was able to come to a consensus recommendation only as to the course of action the NCP should undertake when a party fails to respond in a timely fashion:

  • The SAB recommends that the NCP should, as a matter of policy, explain the steps and the course of action it will take if a party fails to respond in a timely fashion.

The SAB was unable to come to consensus recommendations on other aspects of the NCP’s procedure at the Initial Assessment stage. We therefore present the varying positions of members of the SAB, as well as the supporting arguments on both sides.

Parallel Proceedings

  • Some members of the SAB recommend that the NCP should adopt the U.K.’s policy on parallel proceedings. Those participants felt that the U.K. NCP’s procedures provide a clearer understanding of how to proceed in the face of parallel proceedings than the current U.S. policy, and are preferable because they stress that the NCP will seek to play a useful role in resolving disputes whenever possible. They noted that, according to the U.K. NCP’s representatives, the number of Specific Instances involving parallel proceedings in the U.K. was low, despite the more flexible approach to such submissions.
  • Some members of the SAB felt that the U.S. NCP should maintain its current policy on parallel proceedings and that the U.K. procedures would encourage complainants to seek recourse in multiple forums, thereby overburdening businesses.

Exhaustion of Local Remedies

  • The academic, labor, environment and civil society members of the SAB recommend that exhaustion of local remedies should not be a permissible ground for the U.S. NCP to dismiss Specific Instance complaints. Exhaustion is not mentioned or implied in the Guidelines, which expressly contemplate a role in resolving disputes for home country-NCPs when the complaint arises in a non-adhering country.[27]
  • The business participants of the SAB felt that the U.S. NCP should have discretion to dismiss Specific Instance complaints if it considers that the complainant should have first sought a remedy from local courts.

Pre-Initial Assessment Dismissals

  • The academic, labor, environment and civil society participants of the SAB believe that the NCP is required by the Guidelines and its own Procedures to conduct an Initial Assessment in all instances. The NCP should determine whether a submission falls under the Guidelines, involves a multinational enterprise, and whether the issue is material and substantiated. All these determinations should appear in both the Initial Assessment and Final Statement, regardless of the outcome of the Specific Instance complaint.
  • The business participants of the SAB felt that the NCP should be able to dismiss Specific Instance complaints without conducting an Initial Assessment in some instances, such as if the Respondent decides not to engage in mediation, or if there is a breach of confidentiality at the outset.

Options for Good Offices When Mediation is Impossible

  • The academic, labor, environment, and civil society members of the SAB recommend that the NCP develop options for assisting a complainant with dispute resolution, even where the Respondent declines to engage. The Procedural Guidance explains that mediation and conciliation services are only “part of” the good offices that NCPs are expected to provide.[28] The NCP may still play a useful role in such a situation, for example, by cooperating with a complaining party to seek assistance from other government agencies, developing strategies for engaging the company through other means, and providing recommendations as to what sorts of conduct should be expected under the Guidelines.
  • Most or all of the business participants of the SAB did not agree that the NCP should provide assistance to a complaining party if the Respondent declines to engage in mediation. They felt that such measures would amount to a punishment of the Respondent for declining to engage in a voluntary process.

Outside Information and Site Visits

  • Most members of the SAB agreed that the NCP could rely on outside sources of information, such as information from other government entities, in conducting its Initial Assessment. These members also agreed that the NCP should provide written assurance to the parties that information pertaining to the Specific Instance will be shared with them. In addition, most members agreed that the parties should be offered an opportunity to respond to the information gathered from outside sources and suggest additional sources. These members also suggested that the NCP clarify under what circumstances it would consider conducting a site visit during an Initial Assessment, recognizing budgetary constraints.
  • Business members of the SAB felt that the Initial Assessment should be conducted strictly on the basis of information from the parties and that site visits are not called for during this phase.

B. Mediation

Current Status

  • The NCP has entered into an agreement with the Federal Mediation and Conciliation Service (“FMCS”) in which FMCS will make its mediators available to the Department of State in support of the U.S. NCP’s efforts to resolve specific instances.[29]

Observations

The SAB agreed that the NCP’s agreement with FMCS constitutes a positive step towards ensuring that the U.S. NCP’s mediation process is effective and successful. The SAB notes that the FMCS is an independent agency tasked with preserving and promoting labor-management peace and cooperation. Its roster of neutrals should prove helpful in resolving disputes when both parties are interested in pursuing mediation.[30] The actual role of the FMCS was discussed by the SAB. The SAB also discussed possible responses by the NCP if communities or individuals based overseas could not travel to the U.S. for mediation, for various reasons, including the financial inability to support a trip to the U.S.

Recommendations

  • The SAB recommends that mediators from FMCS become familiar with the Guidelines. Some members of the SAB have also recommended that mediators should undertake the necessary training to understand the meaning and implementation of the international standards referenced in the Guidelines.
  • Business members of the SAB felt that the Guidelines are a self-contained instrument and that other texts are not relevant for their use.
  • Some members of the SAB recommend that the NCP clarify its role, or that of FMCS, in assisting parties to determine the methods and procedures that will be relied on for mediation.
  • The SAB recommends that the NCP clarify its policy when Specific Instances are filed by communities or individuals based overseas who are prevented, financially or otherwise, from participating in mediation in the U.S. The NCP should consider its budgetary constraints in developing these procedures and should consider a variety of potential ways to deal with this situation, potentially including employing methods of video conferencing or other electronic communication, providing travel assistance and/or having in-country mediations.

C. Fact-finding and/or Creating a Problem-Solving Atmosphere

Current Status

  • The NCP’s procedures do not specify whether the NCP will engage in fact-finding or assess whether an MNE’s conduct has been consistent with the Guidelines. In practice, the NCP has at times engaged in limited fact finding for the purposes of the Initial Assessment.

Observations

The SAB engaged in numerous discussions regarding whether the NCP should engage in fact-finding, and whether doing so would help or hinder the creation of a problem-solving atmosphere. Several members strongly believed that fact-finding was a necessary tool to assure full participation of the parties in the process. Still, some members believed just as strongly that fact-finding would discourage MNEs from fully participating in the process.

During our review of the procedures of other NCPs, the SAB learned that the U.K., Netherlands and Norwegian NCPs are authorized to engage in fact finding.[31] One NCP encourages MNEs to participate in the Specific Instance process by emphasizing its authority to engage in fact finding, which under certain circumstances can ultimately be included, along with the determination of whether the Guidelines have been violated, in its publically issued Final Statement.

On the other hand, during conversations with the U.S. NCP, the SAB learned that the NCP feels challenged by the number of Specific Instance requests it receives in which the complaining party does not actually want mediation, but instead wants the NCP to determine whether the MNE at issue is violating the Guidelines.

Recommendations

  • The academic, labor, environmental and civil society members of the SAB recommended that in order to increase the leverage of the U.S. NCP and improve the chances that MNEs will engage, the NCP should be empowered to make findings of fact and draw conclusions as to whether an MNE’s conduct complies with the Guidelines. These members felt that the NCP should follow the practices of the U.K. and Norwegian NCPs by engaging in fact-finding if an MNE is unwilling to participate in mediation, or if an agreement is not reached. In view of other NCPs’ practices, fact-finding could include site visits, interviews, document review, or any other relevant methods. These members also believe that these methods are also useful in reviewing a complaint at the initial stages and mediation.
  • The business members of the SAB disagreed with this recommendation. They felt that giving the NCP the authority to engage in fact finding would alienate MNEs and negatively impact the NCP’s ability to create a problem-solving atmosphere. These members felt that rather than engage in fact finding, the NCP should continue to make clear to anyone requesting findings of violations that the Guidelines are voluntary recommendations to MNEs and that, as such, the Specific Instance process cannot result in a finding or determination of a violation.

D. Issuance of a Final Statement

Current Status

  • The NCP has published its procedures for issuing Final Statements.[32]
  • The NCP has published several Final Statements on its website.

Observations

The SAB discussions regarding Final Statements focused on whether the NCP should issues recommendations on the implementation of the Guidelines and under what circumstances it should do so. It was noted that, to date, the NCP has never issued recommendations,[33] although its procedures say that when the parties fail to reach agreement or are unwilling to participate in good faith, the NCP’s Final Statement “will include recommendations on the implementation of the Guidelines, as appropriate.”[34]

The SAB reviewed the Final Statements of several other NCPs. In Final Statements that are issued after a failed mediation or after one or both parties have expressed an unwillingness to engage in the process, the Norwegian and U.K. NCPs include a determination of whether the Guidelines were breached, along with recommendations regarding the correction of any such breaches.[35]

Additionally, the SAB learned that the Norwegian, U.K. and Canadian NCPs provide the parties with a copy of the draft Final Statement and, at the NCPs’ discretion, incorporate the parties’ comments on the draft.[36] The SAB noted that the U.S. NCP’s procedures do not clarify whether parties will be allowed the opportunity to comment on a draft Final Statement before it is published.

Recommendations

  • Although all members of the SAB agreed that the NCP should allow parties to comment on a draft Final Statement, some members of the SAB questioned whether it was wise to recommend that the NCP clarify this point in its written procedures.
  • The academic, labor, environmental, and civil society members of the SAB believe that determinations and recommendations are a crucial part of the NCP’s role, which includes the responsibility to explain the Guidelines and elaborate on the U.S. Government’s expectations of MNEs with regard to Guidelines-consistent conduct.[37] Those members recommend that the NCP make determinations regarding Guidelines violations and provide recommendations aimed at explaining the U.S. Government’s expectations in Final Statements issued after a failed mediation or if a party is unwilling to participate.
  • The business members of the SAB believe that making determinations is inconsistent with the voluntary nature of the NCP process. Those members recommend that the NCP avoid making any determinations regarding the Guidelines and that making a determination would be impossible since the Guidelines are not written to be auditable.

E. Remedies

Current Status

  • The NCP does not issue findings about practices that are inconsistent with the Guidelines.
  • In at least one instance, the NCP rejected a submission because it believed the remedy sought – financial settlement – fell outside its responsibilities.[38]

Observations

The SAB was deeply divided in its discussion of the types of remedies that could appropriately be sought through a Specific Instance complaint. The SAB noted that the Procedural Guidance and Commentary do not address the forms of relief, if any, the parties could, on a voluntary basis, agree to as the result of a Specific Instance process. Discussion focused on whether the NCP should take a broader view of potential remedies than its current practice suggests. Members of the SAB discussed whether it was ever appropriate to seek compensation through a Specific Instance process. They also discussed whether determinations by the NCP of whether an MNE had behaved inconsistently with the Guidelines were a potential remedy that the Specific Instance process could provide.

Recommendations

  • The academic, labor, environmental and civil society members of the SAB believed that the NCP should reconsider its willingness to make determinations of compliance with the Guidelines, at least in some circumstances.
  • The business members of the SAB supported the NCP’s current policy that it is inappropriate to make determinations regarding the Guidelines, based on the belief that such determinations were contrary to the voluntary nature of the NCP process and not possible given that the Guidelines are not written to be auditable.
  • The academic, labor, environment and civil society members of the SAB recommend that the NCP reconsider its apparent unwillingness to consider requests for financial settlement. Those members recommend that the NCP allow parties to determine, on a case-by-case basis, what type of relief can be negotiated through a mediation process, including a financial settlement or agreement to stop conduct that is inconsistent with the Guidelines. Additionally, those members recommend that if the NCP intends to reject requests on the basis of the remedy sought, it should clarify what types of remedy requests will be deemed outside the scope of the NCP’s auspices. This will help requestors determine in advance whether to file a request with the NCP and will prevent any misconceptions about possible outcomes.
  • The business members of the SAB believed that it was inappropriate for the SAB to discuss possible outcomes of a mediated solution. Those members also felt that requestors seeking financial settlement should go to court and should not use the NCP process.

F. Monitoring and Reporting

Current Status

  • The NCP issued procedures specifying that it may monitor the implementation of an agreement reached or recommendations made by the NCP, but that “such monitoring will be entirely within the discretion of the U.S. NCP and will only be done on an exceptional basis, if the U.S. NCP determines this is appropriate, and only as the U.S. NCP’s resources allow.”[39]

Observations

The SAB’s discussion of this issue focused on whether the NCP should further clarify the situations in which it would conduct monitoring, and also the utility of building monitoring into the Specific Instance process. Recognizing the differing staff and resource levels among all of the NCPs, the SAB learned that some NCPs in other countries routinely engage in monitoring as part of follow-up in the Specific Instance process. For instance, the U.K., Canadian and Norwegian NCPs request parties to provide them with substantiated updates on the MNE’s progress in implementing the recommendations in the Final Statement.[40] Additionally, in one recently published submission, the Netherlands NCP committed to assist in ensuring that an agreement to pursue support from other NCPs pertaining to a proposed review and assessment mission to India is carried out.[41]

The SAB also discussed whether the NCP should formally report the results of Specific Instances to other government bodies. The SAB learned that both the U.K. and Norwegian NCPs have built this step into their Specific Instances process.[42] The U.K. NCP, for instance, sends its Final Statements (whether monitoring is envisaged or not) to Parliament, its Exports Credit Agency, and other government stakeholders.[43]

Recommendations

  • Some members of the SAB recommend that the NCP take a broader view of its authority and ability to conduct monitoring, particularly monitoring based primarily on reports from the parties, which presumably would not require substantial resources on the part of the NCP. These members also felt that, in order to increase the predictability and transparency of the Specific Instance process, the U.S. NCP should clarify under what circumstances it would conduct monitoring, either as a component of a mediated outcome or as follow-up to its own recommendations.
  • Some members of the SAB found the NCP’s current statement regarding monitoring, sufficiently clear. Additionally, those members did not believe that the NCP should expand its monitoring role.
  • Some members of the SAB recommend that the NCP formally report Final Statements to relevant U.S. federal agencies and Congressional committees, in order to provide greater transparency and coherence. Agencies that should receive Final Statements include members of the Interagency Working Group, the Overseas Private Investment Corporation and the U.S. Export-Import Bank.
  • Some members of the SAB believe that the NCP’s current policy of publishing Final Statements on the NCP website is sufficient to adequately inform Congress and relevant federal agencies.

G. Reporting to the OECD Secretariat

Current Status

  • The NCP regularly reports to the OECD Secretariat, using the Secretariat’s forms.

Observations

The SAB discussed the importance of strictly adhering to standardized reporting to the OECD Secretariat by adequately distinguishing between each phase of the proceedings and by providing information on the duration of each phase.

Recommendations

  • In order to ensure transparency and accountability, the SAB recommends reporting to the OECD Secretariat.

[1] http://www.state.gov/e/eb/oecd/usncp/

[2] http://www.state.gov/documents/organization/156978.pdf

[3] http://www.state.gov/e/eb/adcom/aciep/mtg/169826.htm

[4] http://www.state.gov/e/eb/oecd/usncp/us/index.htm

[5] In addition to Herrnstadt and Gunn, current members of the SAB include: Barbra Anderson, Sabre Holdings; Michael Bride, United Food and Commercial Workers Union; Brian Campbell, International Labor Rights Forum; Lewis Cohen, SI-WEL International; Lance Compa, Cornell University; Celeste Drake, AFL-CIO; Kristen Genovese, Center for International and Environmental Law; Adam Greene, U.S. Council for International Business; Clifford Henry, Procter and Gamble; Jonathan Kaufman, EarthRights International ; Ray Marshall, University of Texas; Sarah Singh, Accountability Counsel

[6] http://www.state.gov/r/pa/prs/ps/2012/01/182844.htm

[7] OECD Guidelines for Multinational Enterprises (2011 Edition), p. 79 (hereinafter , “OECD Guidelines”); available at http://www.oecd.org/daf/inv/mne/48004323.pdf

[8] See http://www.state.gov/e/eb/oecd/usncp/links/rls/197766.htm.

[9] For instance, in the LEAD Group submission, the NCP asked the LEAD Group to identify precise provisions of the Guidelines on which it was basing its complaint.

[10] For example, the CAO’s Operational Guidelines specify that it will accept complaints in any language and will attempt to communicate with complainants in the language in which the complaint was submitted. CAO Operational Guidelines §§ 2.1.3, 6 (Mar. 2013), available at http://www.cao-ombudsman.org/howwework/documents/CAOOperationalGuidelines_2013.pdf (hereinafter, “2013 Operational Guidelines”); see also CAO Operational Guidelines §§ 1.4, 2.2.3 (Apr. 2007), available at: http://www.cao-ombudsman.org/about/whoweare/documents/EnglishCAOGuidelines06.08.07Web.pdf (hereinafter, “2007 Operational Guidelines”).

[11] The CAO’s Operational Guidelines provide a possible example: they mention that it is helpful if a complaint includes information about specific policies, guidelines or procedures that are thought to have been violated, but explicitly states that “[t]here is no requirement for a complainant to specify particular policies, guidelines or procedures.” 2013 Operational Guidelines § 2.1.4; 2007 Operational Guidelines § 2.2.4.

[12] In deciding whether the new information should be accepted, the NCP should consider, among other things, whether the information is so new and unrelated to the initial request that it presents a new Specific Instance and whether the newly available information is relevant to determinations such as whether bona fide issues have been raised or what, if any, recommendations on the implementation of the Guidelines the NCP should make. The NCP need not consider the newly submitted information if it is determined that the information was submitted solely to draw out the process or “shift the ground” on which the Specific Instance was initiated. However, given that the NCP Specific Instance process is non-adjudicatory and non-adversarial and lacks any ability to compel compensation to requesting parties, there is little reason to artificially “freeze” in time the issue a requester seeks to address. Rather, as events develop on the ground, the NCP might well be in a better position to offer its good offices should it learn more about whether the specific actions complained of have changed, ceased, or continued.

[13] “In addition to the transparency requirements of the Guidelines, the Norwegian NCP complies with the Norwegian Freedom of Information Act and practices enhanced access to information…All information will be made public, except when information may cause harm to individuals, reveal business secrets or expose certain details of the mediation process. As a consequence, all correspondence with the NCP can be made publically available if someone asks for access to it. NCP Norway publishes all reports, including initial assessments, final statements and mediated outcomes. The NCP also issues a press release when a case is closed.” NCP Norway, Assessment of Complaints, Available at http://www.regjeringen.no/en/sub/styrer-rad-utvalg/ncp_norway/assessment-of-complaints.html?id=732730

[14] See, Norwegian NCP, Procedural Guidelines for Handling Complaints (Oct. 1, 2013), available at: http://www.regjeringen.no/upload/UD/Vedlegg/ncp/complaints_guidelines.pdf (hereinafter, “Norwegian NCP Procedures”); UK NCP, UK National Contact Point (NCP) Procedures for Dealing with Complaints Brought under the OECD Guidelines for Multinational Enterprises, § 3.7.3 (Jan. 25, 2011), available at: http://www.bis.gov.uk/files/file53070.pdf (hereinafter, “UK NCP Procedures”).

[15] We note that the Guidelines do not indicate the business community should be specially targeted for outreach, to the exclusion of other groups. See Procedural Guidance, I (B) (2) (“The National Contact Point will: . . . [r]aise awareness of the Guidelines and their implementation procedures, including through co-operation, as appropriate, with the business community, worker organisations, other non-governmental organisations, and the interested public.”).

[16] See Commentary on Procedures, p. 80, para. 16 (“In their efforts to raise awareness of the Guidelines, NCPs will co-operate with a wide variety of organisations and individuals, including, as appropriate, the business community, worker organisations, other non-governmental organisations, and other interested parties. Such organisations have a strong stake in the promotion of the Guidelines and their institutional networks provide opportunities for promotion that, if used for this purpose, will greatly enhance the efforts of NCPs in this regard.”).

[17] See Procedural Guidance, I(C)(5) (“If issues arise in non-adhering countries, [the NCP will] take steps to develop an understanding of the issues involved, and follow these procedures where relevant and practicable.”); Commentary on Procedures, p. 86, para. 39 (“In the event that Guidelines-related issues arise in a non-adhering country, home NCPs will take steps to develop an understanding of the issues involved. While it may not always be practicable to obtain access to all pertinent information, or to bring all the parties involved together, the NCP may still be in a position to pursue enquiries and engage in other fact finding activities.”).

[18] English, French and Spanish have been provided. See, http://www.state.gov/e/eb/oecd/usncp/guidelines/index.htm

[19] The Guidelines are clear that promotion should include not only advancing the Guidelines among stakeholders but also building awareness of the specific instance procedures and the process of filing a complaint. See Commentary on Procedures, p. 80, para. 15 (“NCPs should provide information on the procedures that parties should follow when raising or responding to a specific instance. It should include advice on the information that is necessary to raise a specific instance, the requirements for parties participating in specific instances, including confidentiality, and the processes and indicative timeframes that will be followed by the NCP.”).

[20] See Procedural Guidance § I(B)(1) (The NCP will "[m]ake the Guidelines known and available by appropriate means, including through on-line information, and in national languages.”)

[21] Id.

[22] U.S. NCP Procedures for Specific Instances Under the OECD MNE Guidelines (Nov. 2011), available at http://www.state.gov/e/eb/oecd/usncp/links/rls/166661.htm.

[23] See U.K. Dep’t. for Business Innovation & Skills, Approach of the U.K. national contact point to specific instances in which there are parallel proceedings (Jan. 2011), available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/31717/11-652-approach-national-contact-point-parallel-proceedings.pdf.

[24] U.S. NCP, Common Framework for Annual Reporting by National Contact Points for the Period 1 July 2011-30 June 2012, para. 16(c), available at: http://www.state.gov/documents/organization/202978.pdf.

[25] See id. para. 28(a).

[26] See Statement by the U.S. National Contact Point for the OECD Guidelines for Multinational Enterprises on the LEAD Group and Innospec (Feb. 1, 2012), available at http://www.state.gov/e/eb/oecd/usncp/links/rls/183059.htm; U.S. NCP Final Assessment: Communications Workers of America (AFL-CIO, CWA)/ver.di and Deutsche Telekom AG (July 9, 2013), at http://www.state.gov/e/eb/oecd/usncp/links/rls/211646.htm.

[27] OECD, Commentary on the Implementation Procedures of the OECD Guidelines for Multinational Enterprises p. 83, para. 26, p. 86 para. 39 (2011), available at http://www.oecd.org/daf/inv/mne/48004323.pdf.

[28] Id. p. 84, para. 29.

[29] U.S. NCP, Federal Mediation Agency and U.S. National Contact Point Partner to Mediate Guidelines Disputes (Jan. 10, 2013), available at http://www.state.gov/e/eb/oecd/usncp/links/rls/202685.htm.

[30] The U.S. NCP, as well as some NCPs in other countries, have noted the difficulty in obtaining full participation by MNEs in the specific instance process, including mediation. For example, in one recently issued Final Assessment, MNE participation was limited. See U.S. NCP, Communications Workers of America (AFL-CIO, CWA)/ver.di and Deutsche Telekom AG, Final Statement (July 9, 2013), available at http://www.state.gov/e/eb/oecd/usncp/links/rls/211646.htm. The NCP found that “an assessment that the concerns about best practices raised by CWA were material and substantiated”. The NCP requested that “the parties participate in efforts to arrive at a consensual resolution of the matter and recommended voluntary, third-party mediation under the auspices of the …FMCS.” The MNE “raised various questions and concerns regarding the process going forward…Consideration of DT/T-Mobile’s questions and concerns, in part, resulted in significant delays in process…” After participating in a pre-mediation meeting, the MNE failed to respond to the FMCS’s request to schedule a date for the first mediation meeting. The NCP subsequently issued its Final Assessment, informing the parties that it had “determined that the U.S. NCP is no longer able to contribute to a positive resolution of this dispute and therefore withdraws its offer of good offices.”

[31] UK NCP Procedures at 4.5, available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/31822/11-1092-uk-ncp-procedures-for-complaints-oecd.pdf; Netherlands NCP Procedures at 7, available at http://www.oecdguidelines.nl/ncp/filing-specific-instance/#a7; Norwegian NCP Procedures at p. 8, available at http://www.regjeringen.no/upload/UD/Vedlegg/ncp/complaints_guidelines.pdf.

[32] U.S. NCP Procedures for Specific Instances Under the OECD MNE Guidelines (Nov. 2011), available at http://www.state.gov/e/eb/oecd/usncp/links/rls/166661.htm.

[33] Since the conclusion of the SAB’s deliberations, the U.S. NCP has issued recommendations in one Specific Instance. See U.S. NCP, Community Legal Education Center of Cambodia (CLEC)/EarthRights International (ERI) and American Sugar Refining Inc. (ASR), Final Statement (June 20, 2013), available at http://www.state.gov/e/eb/oecd/usncp/links/rls/210970.htm.

[34] U.S. NCP Procedures.

[35] See Norwegian NCP Procedures at p. 9, available at http://www.regjeringen.no/upload/UD/Vedlegg/ncp/complaints_guidelines.pdf; U.K. NCP Procedures at 5.1, available at https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/31822/11-1092-uk-ncp-procedures-for-complaints-oecd.pdf.

[36] See Norwegian NCP Procedures at p. 9-10; UK NCP Procedures at 5.2; Canadian NCP Procedures at 13, available at http://www.international.gc.ca/trade-agreements-accords-commerciaux/ncp-pcn/procedures_guide_de_procedure.aspx?lang=eng#thirteen.

[37] In this regard, some members of the SAB believe that the issuance of recommendations and determinations could contribute to the NCP’s fulfillment of its “proactive agenda,” which aims to foresee issues MNEs may face that are relevant to the Guidelines and assist them in applying the Guidelines faithfully.

[38] U.S. NCP, U.S. NCP Initial Assessment: Individual A/Company X and MNE Number One (Aug. 28, 2012), available at http://www.state.gov/e/eb/oecd/usncp/links/rls/197795.htm.

[39] U.S. NCP Procedures.

[40] See UK NCP Procedures at 6.1; Canadian NCP Procedures at 13.4; Norwegian NCP Procedures at p. 10.

[41] See Netherlands NCP, Preliminary Report on the alleged breach of the OECD Guidelines by Pohang Iron and Steel Company (POSCO), ABP, All Pension Group (APG) and Norwegian Bank Investment Management (NBIM) (Mar. 13, 2013), available at: http://www.oecdguidelines.nl/wp-content/uploads/ncp_preliminary_statement_somo_bothends_abp_apg_13_3_2013incl.pdf.

[42] See U.K. NCP Procedures at 5.2; Norwegian NCP Procedures at p. 11.

[43] Based on written responses to questions posed by the SAB on January 10, 2013. The Norwegian NCP informs relevant government entities of its statements and reports when they are relevant to agencies’ policies and programs. See Norwegian NCP Procedures at p.11.