Trends, facts and figures in OECD
Guidelines cases: an analysis of NGO
experiences
Bart Slob
Bangalore, March 2009

Presentation overview
1. What is OECD Watch?
2. What are the OECD Guidelines?
3. Statistical overview OECD Guidelines cases
4. Recent developments
5. Trends in recent cases

What is OECD Watch?
• Facilitates NGO activities around the OECD Guidelines
(documenting violations and filing complaints) and the
work of the OECD’s Investment Committee
• Currently consists of 80 member organisations from 41
different countries around the world
• Receives funding from EU, Dutch Ministry of Foreign
Affairs, Oxfam Novib
• www.oecdwatch.org: newsletters, briefing papers, reports
on functioning of NCPs, case database

What are the Guidelines?
• Set of voluntary recommendations to Multinational
Corporations from OECD and 10 adhering countries
(Argentina, Brazil, Chile, Estonia, Israel, Latvia, Lithuania,
Rumania and Slovenia, and most recently Peru)
• Part of the OECD Declaration on Investment (including
national treatment and non-discrimination) securing rights for
investors
• They represent a commitment from OECD Governments
towards responsible behavior of their multinational
enterprises worldwide

Content of the Guidelines
• Respect for human rights
• Respect for core labor standards
• Contribution to sustainable development
• Environment (precautionary principle)
• Supply chain responsibility
• Bribery and corruption
• Taxation
• Competition
• Whistleblower protection

Complaint mechanism
• Semi-judicial instrument with a type of dispute resolution
mechanism
• Any “interested party” can raise a complaint against a
company for an alleged violation of the Guidelines – this is
called a “specific instance”
• Bodies designated to handle complaints are National Contact
Points (NCPs)
• Worldwide applicability, with limitations

National Contact Points (NCPs)
Guidelines’ Procedural Guidance is vague, but does stipulate:
• Role of NCPs is to further effectiveness of Guidelines
• Governments have to set up NCPs, but have flexibility
• NCPs shall undertake activities to promote Guidelines
• NCPs shall handle ‘specific instances’ of violation of Guidelines
- Make initial assessment
- Offer ‘good offices’ to help parties resolve issues
- If no agreement, issue statement and recommendations

Unsatisfactory experience with NCPs
Through case experience, OECD Watch has documented:
• A lack of investigative power and will by NCPs
• “Investment nexus” and supply chain issues
• Unequal treatment of NGOs
• Parallel legal proceedings
• Prolonged delays in handling of cases

Statistical overview of cases
• As of March 2009, NGOs have filed 79 cases
25
21
20
15
11 11
9 9
10 8
5
5
1
0
2001 2002 2003 2004 2005 2006 2007 2008

Statistical overview of cases
• Current status / outcome:
6
Blocked
6
Withdrawn
20
Rejected
3
Closed
20
Concluded
13
Pending
11
Filed
0 5 10 15 20 25

Statistical overview of cases
General Policies (human rights, supply chain) 60
Environment 30
25
Employment and Industrial Relations
22
Disclosure
19
Combating Bribery*
Concepts and Principles 11
Competition 9
7
Taxation
5
Consumer Interests
0
Science and Technology
0 10 20 30 40 50 60 70

Recent developments at NCPs
• UK (restructuring in 2007)
• Multi-departmental Steering Board with 4 multi-stakeholder
externals
• Resources (£100,000 per year for 5 years) + 2 FTE
• Staff: 3 FTE
• Clear final statements and recommendations
• Netherlands (restructuring 2007/8)
• 4 independent experts + 2 NCP secretariat
• Resources (€300,000 per year for 3 years)
• Staff: 2 FTE + 4 part-time experts
• Argentina
• Multi-partite advisory board

Trends in recent cases (1)
• Applicability of Guidelines to financial institutions: Nordea
case
• Case filed in June 2006 at Swedish and Norwegian NCPs
• Allegation: Nordea (No/Se) financed Botnia Orion pulp mill
(Uruguay); did not disclose info
• NCPs’ final statement “the Guidelines can and should be
applied to the financial sector…[including], where
practicable, business partners, including their suppliers
and subcontractors, [and] to apply principles of corporate
conduct compatible with the Guidelines”
• However, Australian NCP rejected ANZ Bank case in
October 2006 – “loans not a an investment nexus”

Trends in recent cases (2)
• Supply Chain and Investment Nexus: G-Star
• Case filed October 2006 at Dutch NCP
• Allegation: FFI, a G-Star supplier in India, abusing labor rights;
G-Star not encouraging supplier to abide by Guidelines
• NGOs argued that the long-term, direct trade relationship
between G-Star and FFI constitutes an “investment nexus”,
despite the absence of monetary investment
• Dutch NCP accepted this argument and the case
• Afrimex case (UK, 2008) accepted on similar argument.
However, many cases still rejected on this ground

Trends in recent cases (3)
• Fact finding and local mediation: Shell Philippines
• Case filed May 2006 at Dutch NCP
• Allegation: Shell improperly influencing local politics, not
disclosing info on risks, etc.
• Dutch NCP employed local fact-finder, travelled to
Philippines on fact-finding mission
• NCP now preparing mediation in Philippines to facilitate
participation of local parties

Trends in recent cases (4)
• Strong statements by NCPs: Norway, UK Anglo American in
Zambia (2002-8): UK NCP declares “it is usual practice for NCPs
to make determinations of compliance and to issue
recommendations on those matters which remain unresolved”
• DAS Air in DRC (2004-8): UK NCP concluded that DAS Air
breached the human rights provision by flying into a conflict
zone and by failing to undertake due diligence in its supply
chain.

Trends in recent cases (4)
• Afrimex in DRC (2007-8)
• Allegation: Afrimex trade in coltan and tin contributed to
conflict and human rights abuses
• UK NCP concludes that Afrimex did not comply with Chapter
II (human rights abuses) nor Chapter IV (forced and child
labor)
• What next?

Trends in recent cases (5)
• Parallel legal proceedings: Shell Philippines/Brazil
• Cases filed May 2006 at Dutch/Brazilian NCPs
• Dutch NCP accepts Phl. case despite presence of related
cases at Phl Supreme Court and Regional Trial Court.
• Dutch NCP: “PLPs do not automatically mean that the NCP
cannot investigate the case”
• Allegations in Phl. case slightly different from those in the
Philippine courts; NCP accepts and proceeds
• Brazilian NCP rejects case so as not to “interfere” with
ongoing domestic legal proceedings

More information
• Case overviews and Quarterly Case Updates available on
the OECD Watch website: www.oecdwatch.org
• OECD Watch Supply Chain and Confidentiality Papers
available on OECD Watch website - “Documents”
• OECD Watch newsletters and “5 Years On” report
• OECD Watch training manual

Contact details
SOMO (Centre for Research on Multinational Corporations)
Sarphatistraat 30
1018 GL Amsterdam
The Netherlands
www.somo.nl
b.slob@somo.nl