The Roles and Powers of the OECD National Contact Points Regarding Complaints on an Alleged Breach of the OECD Guidelines for Multinational Enterprises by a Transnational Corporation
32 Pages Posted: 5 Jul 2015 Last revised: 7 Jul 2017
Date Written: March 1, 2015
The OECD Guidelines for Multinational Enterprises are prominent among those international initiatives adopted in recent decades to improve the observance of human rights by transnational enterprises. Although their text states that “observance of the Guidelines by [multinational] enterprises is voluntary”, this instrument has some distinguishing characteristics as compared to other initiatives in this field. One of these features is the duty of adhering states to set up National Contact Points (‘NCPs’), which are charged, among other things, with handling complaints on an alleged breach of the Guidelines by a transnational corporation. Despite the potential critical importance of this feature of the Guidelines, research on the NCPs has for the most part focused on their operation under the previous version of the Guidelines. Those few studies analyzing the work of NCPs subsequent to the 2011 review of the Guidelines remain general, particularly regarding their roles and powers.
This article contributes to filling this gap in the literature. It analyzes the roles and powers of the OECD NCPs, under the 2011 version of the Guidelines, regarding complaints on an alleged breach of the Guidelines by a transnational corporation. It does so from the empirical, legal positive and the normative perspective. Specifically, it does so through an examination of relevant OECD instruments, the regulations and practice of Brazil’s, Mexico’s, Norway’s, the United Kingdom’s and the United States of America’s NCPs, and many relevant theoretical and empirical studies.
This article first finds that the NCPs case studies and the Australian have fundamentally different conceptions of their roles and powers regarding individual complaints. Subsequently, it proposes an interpretation of the roles and powers of NCPs regarding these complaints based on a systematic understanding of relevant OECD instruments that draws on rules of interpretation in international law and other relevant normative considerations. When doing so, it demonstrates that these differences are not well justified neither according to international law rules of interpretation nor in terms of other relevant normative considerations.
Keywords: human rights; responsible business conduct; corporate accountability; OECD Guidelines for Multinational Enterprises; OECD National Contact Points; extra-territorial conduct; effective remedy
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