Rules of procedure for handling specific instances

Foreword

The OECD Guidelines for Multinational Enterprises are the only government-backed international instrument for responsible business conduct featuring a built-in non-judicial grievance mechanism for their implementation: the National Contact points (NCP’s).

Beside other tasks, like promoting the Guidelines, NCP’s thus provide also a platform for discussing issues related to implementation of the OECD Guidelines in Specific Instances (SI) brought before them.

A Specific Instance, although not formally defined in the Guidelines, designates and applies to situations of alleged non-observance of the Guidelines brought to NCP’s. An ad-hoc questionnaire designed to help the complainant introduce a specific instance is available on the Luxembourg NCP’s website.

Handling these Specific Instances requires a set of rules of procedure, which are meant to provide a “forum for discussion” for issues arising in relation to implementation of the Guidelines. They describe publicly and ex ante what the Specific Instance procedure of the Luxembourg NCP involves, and are designed to ensure the required visibility, accessibility, transparency and accountability expected from NCP’s. The specific Instances will thus be handled in a way that is impartial, predictable, equitable, compatible with the requirements as provided by the OECD Procedural Guidance and its Commentary.

Therefore, the following rules of procedure will address the Specific Instance process of the Luxembourg NCP, including its stages and timeframes, the potential role of the Luxembourg NCP in helping the parties offer remedy or conclude an agreement, implementing and monitoring the latter.

Care was taken in balancing sometimes conflicting requirements – like transparency and confidentiality, both precious and worthwhile qualities in their own right – and aiming at a pragmatic approach in order to fulfill the Luxembourg NCP’s purpose and mission.

This pragmatic and efficient approach rests on strong principles where required, and at the same time leaves, where appropriate, room for a flexible approach for handling some aspects of the Specific Instance on an ad-hoc manner, that however remain always be consistent with the word and spirit of the Procedural Guidance and its Commentary.

By definition, these rules may evolve, taking stock of experience gathered through the OECD NCP network and the Luxembourg NCP’s own practice, as well as the doctrine and work in progress of the OECD Investment Committee’s Working Party for Responsible Business Conduct.

The Luxembourg NCP is based, managed and coordinated in and by the Ministry of the Economy. While seeking a neutral approach when handling Specific Instances and offering resolution, its structure an approach are thus by design bottom up, meaning the NCP encourages – including with its rules of procedure – businesses to develop a homegrown responsible business conduct and attitude.

Introducing a Specific Instance

An ad-hoc questionnaire designed to help the complainant introduce a viable specific instance with regard to the above mentioned requirements is available on the Luxembourg NCP’s website. The complainant may however freely introduce a Specific Instance without this ad-hoc questionnaire.

The complaint must be sent either in written form or by email to the Luxembourg NCP at the Ministry of the Economy, L-2937 Luxembourg, or christian.schuller@eco.etat.lu with the mention “Complaint to the Luxembourg OECD National Contact Point”.

The Luxembourg NCP shall help the complainant comply with fundamental requirements to meet the criteria of materiality and substantiation of the complaint, whether the available ad-hoc questionnaire is used or the Specific Instance is introduced in free form.

When proceeding with its initial assessment of the Specific Instance, the Luxembourg NCP shall take into account the identity of the party concerned and its interest in the matter, whether the issue is material and substantiated, 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 procedure, including court rulings, how similar issues have been, or are being treated in other domestic or international proceedings, whether the consideration of the specific issue would contribute to the purposes and effectiveness of the OECD Guidelines for Multinational Enterprises.

The complainant may meet in person with the NCP for the purpose of introducing a Specific Instance or substantiate the case.

Timeframes and information of the parties involved

An acknowledgement of receipt of the Specific Instance introduced with the Luxembourg NCP shall be sent to the complainant(s) within 5 working days by email and/or by mail.

This acknowledgement of receipt will include the information that the complaint, and any further material complementing it thereafter, will be sent to all involved party(ies) and that the Luxembourg NCP may inform or share the material with any authority or expert it deems appropriate for handling the case.

This acknowledgement of receipt does not imply that the Specific Instance is accepted for further examination, unless stated otherwise by the Luxembourg NCP. The Luxembourg NCP shall inform the other party(ies) involved by the complaint within 5 working days and send a full copy of the complaint to them, as well as any further material provided thereafter to build the case.

Written statements or responses from any party(ies) involved by the Specific Instance, irrespective of kind or form, will be sent by the Luxembourg NCP to the other party(ies) involved within 5 working days.

The Luxembourg NCP will conclude its initial assessment of the Specific Instance within 3 calendar months and inform the parties. If assessing the Specific Instance requires that the parties involved provide additional material, or ask for reasonable time to seek legal advice or scrutiny, this additional time shall be added to said 3 months for the Luxembourg NCP to proceed with the assessment.

There will be no recourse against the Luxembourg NCP’s decision to dismiss or accept a Specific Instance for further examination.

If the Luxembourg NCP accepts the Specific Instance for further examination, it will either offer in its statement concluding the initial assessment – or in a separate document to be sent within 10 working days to the parties involved – its good offices (meaning an offer of dialogue, mediation or any steps deemed appropriate for helping with the resolution of the Specific Instance; see section “Good Offices” below) and propose a procedure with a timeframe that it deems appropriate, or proceed with its final statement if it appears outright that the parties cannot be brought together in any manner for resolution of the pending issues.

The parties have 10 working days to address remarks, disagreements or any commentary to the Luxembourg NCP after they receive the draft of the statement concluding the initial assessment or the draft of the final statement concluding the Specific Instance. Thereafter, the Luxembourg NCP will proceed with its statement concluding the initial assessment or its final statement concluding the Specific Instance, both being then publicly available. They will also be published on the Luxembourg NCP’s website within 15 working days.

If the good offices offered by the Luxembourg NCP were accepted by the parties, or if the parties have themselves proposed and agreed on measures to solve the issues under the supervision or the monitoring of the Luxembourg NCP, the Luxembourg NCP will release a follow-up statement after 12 months addressing the state of compliance of the settlement agreed upon for the resolution of the issues raised.

A draft of this follow-up statement will be sent to the parties prior to release. The parties have 10 working days to address remarks, disagreements or any commentary to the Luxembourg NCP after they receive this follow-up draft. Thereafter, the Luxembourg NCP will proceed with the release of its follow-up statement, which will then publicly available and will also be published on the Luxembourg NCP’s website within 15 working days.

Scope

The Luxembourg NCP will by principle accept handling Specific Instances stemming from any party claiming an interest – individuals, local communities, NGO’s, worker organizations, other interested parties – in an alleged breach of the OCDE Guidelines by a multinational enterprise, including non-for-profit legal entities, operating in or from Luxembourg.

Where there are more countries or NCP’s involved, including Luxembourg, the NCP’s will together determine which NCP is best placed to take the lead on a Specific Instance.

The NCP network provides a forum for discussion meant for resolution of issues raised in relation with the OECD Guidelines. The Luxembourg NCP in no way recognizes the alleged breaches solely by accepting to handle a Specific Instance.

However, at a later stage of the procedure, the Luxembourg NCP may issue recommendations or determinations (an assessment that the Guidelines have been breached) in the final statement concluding the Specific Instance, and express its views on whether the Guidelines were observed or if an enterprise had a constructive approach to solving the issues raised, or a policy consistent with the Guidelines.

Transparency and confidentiality

The acknowledgement of receipt informs the complainant that the complaint and any further material complementing it thereafter will be sent to all involved party(ies) and that the Luxembourg NCP may inform or share the material with any authority or expert it deems appropriate for handling the case.

The Luxembourg NCP, when submitted a Specific Instance, will inform NCP’s of other countries involved or potentially involved and share the material with them in a timely manner.

However, exceptionally, the parties may request a specific document to remain confidential, in which case the Luxembourg NCP may grant this request if it appears that this could facilitate resolution of the issues or help reach a positive outcome.

In order to facilitate resolution of the issues raised, the Luxembourg NCP – and any authority or expert it has shared the material of the complaint with – as well as the parties involved by the Specific Instance pledge to maintain confidentiality of the proceedings until the Luxembourg NCP’s statement concluding the initial assessment of the Specific Instance.

When the Luxembourg NCP’s statement concludes that the issues raised merit further consideration and offers its good services, confidentiality will be maintained as deemed appropriate by the parties if this offer of good services is accepted. If the Luxembourg NCP’s offer of good services is rejected by any party, or if the parties involved fail to agree on a resolution of the issues as part of the good offices provided by the Luxembourg NCP, the party(ies) are free to communicate about and discuss publicly these issues.

A draft of the statement concluding the initial assessment and a draft of the final statement concluding the Specific Instance will be sent to the parties involved by the Specific Instance to allow them to address remarks, disagreements or any commentary to the Luxembourg NCP.

Thereafter, the Luxembourg NCP will proceed with its statement concluding the initial assessment or its final statement concluding the Specific Instance, both being then publicly available.

Assistance to the parties involved

While always remaining neutral and in no way prejudging on the merits of the Specific Instance brought before it, the Luxembourg NCP will assist the complainant in complying with fundamental requirements in order to meet the criteria of materiality and substantiation of the complaint.

By the same token, the Luxembourg NCP will provide assistance to the other parties involved if required, in order to be in a position to assess properly and fairly the Specific Instance.

The required and sought after neutrality of the Luxembourg NCP means that no financial assistance will be provided to any party involved.

However, costs for carrying out procedures like mediation, supervision, investigation, fact finding missions by the Luxembourg NCP or by an expert or any ad-hoc entity commissioned for this task by the Luxembourg NCP, or any other procedure deemed appropriate for helping the resolution of the raised issues, since they are benefiting to all parties, may be carried out by the Luxembourg NCP.

Initial assessment

In making an initial assessment of the Specific Instance that can lead to further examination of the case, the Luxembourg NCP shall take into account the identity of the party concerned and its interest in the matter, whether the issue is material and substantiated, 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 procedure, including court rulings, how similar issues have been, or are being treated in other domestic or international proceedings, whether the consideration of the specific issue would contribute to the purposes and effectiveness of the OECD Guidelines for Multinational Enterprises.

The Luxembourg NCP will not dismiss outright a Specific Instance brought before it solely because parallel proceedings have been conducted, are pending or have produced results available to parties, although, by the same token, these proceedings may of course influence the Luxembourg NCP’s initial assessment of the Specific Instance.

The Luxembourg NCP will conclude its initial assessment of the Specific Instance within 3 calendar months. The Luxembourg NCP may ask parties involved to provide additional material if properly assessing the Specific Instance requires this. The party(ies) aimed by the complaint may request reasonable time to seek legal advice or scrutiny. In such cases, this additional time shall be added to said 3 months for the Luxembourg NCP’s assessment.

The parties may ask to meet the Luxembourg NCP as part of the initial assessment undertaken. Should any party meet with the Luxembourg NCP, the other party(ies) will be informed.

The Luxembourg NCP will provide the parties with a draft statement to allow them to address within 10 working days remarks, disagreements or any commentary to the Luxembourg NCP. The Luxembourg NCP will then proceed with its statement concluding the initial assessment of the Specific Instance, which will then be publicly available and will also be published on the Luxembourg NCP’s website within 15 working days.

If the Luxembourg NCP accepts the Specific Instance for further examination, it will either offer its good offices and propose a procedure with a timeframe that it deems appropriate in its statement concluding the initial assessment – or in a separate document to be sent within 10 working days to the parties involved – or proceed outright with its final statement if it appears that the parties cannot be brought together for resolution of the pending issues.

There will be no recourse against the Luxembourg NCP’s decision to dismiss or accept a Specific Instance for further examination.

Good offices

If the Luxembourg NCP accepts the Specific Instance for further examination, it will offer its good offices and propose a procedure with a timeframe that it deems appropriate in its statement concluding the initial assessment or in a separate document to be sent within 10 working days to the parties involved.

The parties may themselves provide at any time alternate ways helping a resolution process.

Good offices may include mediation, supervision, investigation, fact finding missions by the Luxembourg NCP or by an expert or any ad-hoc entity commissioned for this task by the Luxembourg NCP, or any other procedure deemed appropriate for helping the resolution of the raised issues.

The Luxembourg NCP will however terminate the Specific Instance procedure and proceed outright with its final statement if it appears that the parties cannot be brought together for resolution of the pending issues by any of the means proposed by the Luxembourg NCP or by the parties themselves.

Conclusion of the procedures – Final statement

When the Luxembourg NCP has completed its initial assessment and offered its good offices to both parties to reach resolution, if the parties do not accept these good offices, the Luxembourg NCP will proceed with its final statement and conclude the Specific Instance.

If the good offices offered by the Luxembourg NCP as a result of its initial assessment were accepted by the parties, the Luxembourg NCP will proceed with further examination of the Specific Instance along the lines of the procedure and the timeframe it has proposed to the parties for resolution of the issues raised and which were agreed upon by them, or along the lines the parties have themselves proposed and agreed upon.

The Luxembourg NCP may issue recommendations or determinations in the final statement concluding the Specific Instance, and may express its views on whether the OECD Guidelines were observed or if an enterprise acted in good faith and had a constructive approach to solving the issues raised, or has a policy consistent with the Guidelines.