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Procedural Rules for the Implementation of the OECD Guidelines for Multinational Enterprises — a Public International Law Perspective

Published online by Cambridge University Press:  06 March 2019

Christian Schliemann

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Since the 1990s it is possible to witness, in the multiplication of inter- and transnational actors, an increasing diversity in international norm-making processes as well as a growing variation in enforcing these norms, generically labeled under the term “global governance.” The actions of these private, hybrid or intergovernmental actors on the global level are increasingly seen as equivalent to the exercise of political authority formerly reserved for the state. As in the domestic context, the exercise of such authority raises questions about the procedural guarantees that anyone affected by this action should enjoy. The Organization for Economic Cooperation and Development (OECD) has evaded intensive scholarly attention from the global governance perspective thus far, although by now it is evident that it strongly contributes to this phenomenon through its various activities. The OECD Guidelines for Multinational Enterprises (Guidelines) are but one area in which the OECD is said to assume global governance functions by strongly influencing corporate behavior.

Type
Articles
Information
German Law Journal , Volume 13 , Issue 1: Symposium on Human Rights , January 2012 , pp. 51 - 85
Copyright
Copyright © 2012 by German Law Journal GbR 

References

1 Nowrot, Karsten, Global Governance and International Law, 33 Beiträge zum Transnationalen Wirtschaftsrecht (BTW) 1, 5–12 (2004).Google Scholar

2 Wheatley, Steven, Democratic governance beyond the state: the legitimacy of non-state actors as standard setters, in Non-State Actors as Standard Setters 215, 220 (Anne Peters et. al. eds., 2009).Google Scholar

3 See the contributions in: Mahone, Rianne & McBride, Stephen, The OECD and Transnational Governance (2008); Anne-Marie Slaughter, Global Government Networks, Global Information Agencies, and Disaggregated Democracy, 24 Mich. J. Int'l L. 1041, 1050 (2002–2003); Heather Bowman, If I Had a Hammer: The OECD Guidelines for Multinational Enterprises as Another Tool to Protect Indigenous Rights to Land, 15 Pac. Rim L. & Pol'y J. 703, 709 (2006); James Salzman, Decentralized administrative law in the Organization for Economic Cooperation and Development, 68 Law & Contemp. Prob.189 (2005).Google Scholar

4 Johnston, Donald J., Promoting Corporate Responsibility: The OECD Guidelines for Multinational Enterprises, in Corporate Social Responsibility: The Corporate Governance of the 21st Century 243, 247, 250 (Ramon Mullerat ed. 2005); Gefion Schuler, Effective Governance through Decentralized Soft Implementation: The OECD Guidelines for Multinational Enterprises, 9 Germ. L. J. 1753, 1755–1756 (2008).Google Scholar

5 See Section D of this article.Google Scholar

6 See OECD, OECD Guidelines for Multinational Enterprises - Recommendations for Responsible Business Conduct in a Global Context [hereinafter “OECD Guidelines”] (2011), available at: http://www.oecd.org/document/28/0,3746,en_2649_34889_2397532_1_1_1_1,00.html (last accessed: 23 December 2011).Google Scholar

7 Other regulation attempts include the UN Resolution on Measures Against Corrupt Practices of Transnational and Other Corporations, their Intermediaries and Others Involved, UN G.A. Res. 3514 (XXX) of 15 December 1975 and the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, available at: http://www.ilo.org/empent/Publications/WCMS 094386/lang—en/index.htm (last accessed: 23 December 2011).Google Scholar

8 OECD Guidelines, supra note 6, Preface at para. 1.Google Scholar

9 Id. at Preface at para. 1(2).Google Scholar

10 For an assessment of the quality of the update as concerns the substantial aspects see OECD Watch Statement on the Update of the OECD Guidelines for MNEs – Improved Content and Scope, but Procedural Shortcomings Remain (2011), available at: http://oecdwatch.org/publications-en/Publication_3675 (last accessed: 23 December 2011).Google Scholar

11 Implicit reference means an elucidation of the Guideline provisions within the commentaries issued by the Investment Committee or in the preface of the Guidelines; OECD Guidelines, supra note 6, Commentary on Chapter IV Human Rights, at para. 39; Preface of the Guidelines, supra note 6, at para. 8.Google Scholar

12 Zimmer, Reingard, Soziale Mindeststandards und ihre Durchsetzungsmechanismen - Sicherung internationaler Mindeststandards durch Verhaltenskodizes? (Social Minimum Standards And Their Enforcement Mechanisms – International Assurance, Minimum Standards Of Conduct?) 86–90 (2008).Google Scholar

13 Concerning the environment see Klinkenberg, Michael, Die Leitsätze der OECD für multinational Unternehmenein Vorbild für die neue Welthandelsrunde? (The OECD guidelines for multinational enterprises - a model for the newworld trade round?), 101 Zeitschrift für Vergleichende Rechtswissenschaft (ZVR) 421, 424–426 (2002).Google Scholar

14 The commentary mentions the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the 1998 International Labor Organization Declaration on Fundamental Principles and Rights at Work, UN instruments on the rights of indigenous peoples; persons belonging to national or ethnic, religious or linguistic minorities; women; children; persons with disabilities; and migrant workers and their families as well as the standards of international humanitarian law; OECD Guidelines, supra note 6, Commentary on Chapter IV Human Rights at para. 39.Google Scholar

15 OECD Guidelines— Council Decision, supra note 6, at Part. I, National Contact Points 6.Google Scholar

16 All three documents are contained in the updated version of the Guidelines: Commentary on the Implementation Procedures, supra note 6, at 77–89.Google Scholar

17 OECD Guidelines, supra note 6, at Part I OECD Council Decision, National Contact Points 1.Google Scholar

18 OECD Guidelines, supra note 6, at Part I, Procedural Guidance— National Contact Points.Google Scholar

19 Id. at A.2. In 2009 17 NCP were organized as single government departments, 11 organized as multiple government departments, 1 bipartite NCP, 9 tripartite NCP's, one quadripartite NCP and one mixed structure of independent experts and governmental representatives, See for detailed information on each NCP: Chair of the Meeting on the Activities of National Contact Points, Summary Report 4 (2009), http://www.oecd.org/dataoecd/41/25/43753441.pdf (last accessed: 23 December 2011).Google Scholar

20 Chair of the Meeting on the Activities of National Contact Points, Summary Report 3 (2001), available at: http://www.oecd.org/dataoecd/62/58/2438852.pdf (last accessed: 23 December 2011), e.g. the German “Arbeitskreis OECD Guidelines” involving civil society representatives. The Arbeitskreis delivers general information on current developments without however discussing concrete questions arising within specific instances.Google Scholar

21 OECD Guidelines—Procedural Guidance, supra note 6, at Part. I. C, Implementation in Specific Instances.Google Scholar

22 Id. at 2(d).Google Scholar

23 Id. at 3(b).Google Scholar

24 Id. at 3(c).Google Scholar

25 Id. at Part. II, Investment Committee, 2. (a), (b) and (c).Google Scholar

26 Both committees are independent umbrella organizations consisting of either domestic business organizations or domestic trade unions that have a consultative status with the OECD and its committees. For more information see http://www.tuac.org/en/public/index.phtml (last accessed: 23 December 2011) and www.biac.org/ (last accessed: 23 December 2011) at 31.Google Scholar

27 Queinnec, Yann, The OECD Guidelines for Multinational Enterprises - an Evolving Legal Status, available at: http://asso-sherpa.org/sherpa-content/docs/programmes/GDH/Soft_law/Principes_directeurs_de_l_OCDE_Un_statut_juridique_en_mutation.pdf (last accessed: 23 December 2011). Queinnec argues that the core rules of the CSR norm complex have acquired customary international law status. As part of this process also, the Guidelines are partially acquiring customary international law status.Google Scholar

28 Calliess, Gralf P. & Renner, Moritz, Between Law and Social Norms: The Evolution of Global Governance, 22 Ratio Iuris (RJ) 260, 276 (2009).Google Scholar

29 Armin von Bogdandy et. al., Developing the Publicness of Public International Law: Towards a Legal Framework for Global Governance Activities, 9 Germ. L. J. 1375, 1381–1386 (2008). For the OECD Guidelines for Multinational Enterprises see Schuler, supra note 4, at 1755.Google Scholar

30 Benedict Kingsbury et. al., The Emergence of Global Administrative Law, 68 Law & Contemp. Prob. 15 (2005). For the application of this approach to the OECD including its Guidelines for Multinational Enterprises see Salzman, supra note 3.Google Scholar

31 von Bogdandy et. al., supra note 29, at 1381–1386.Google Scholar

32 Id. at 1382–1384.Google Scholar

33 Id. at 1384.Google Scholar

34 Draude, Anke, How to Capture Non-Western Forms of Governance - in Favour of an Equivalence Functionalist Observation in Areas of Limited Statehood 12 (2007).Google Scholar

35 OECD Guidelines, supra note 6, at Preface, paras. 4 and 9; General Policies, paras. 1–5.Google Scholar

36 See for an overview of the different models of linkage: Annual Report of IC 21–22 (2010), http://www.oecd.org/document/24/0,3746,en_2649_34889_46530712_1_1_1_1,00.html (last accessed: 23 December 2011).Google Scholar

37 On a possible race to the bottom generated by these different national policies see Ulbrich, Mathias, Enforcing Core Labour Rights through the OECD-Guidelines for Multinational Enterprises? Reflections on the Guidelines’ Conciliation Process and the Current Linkage Discussion, 18 Zeitschrift für Ausländisches und Internationales Arbeitsrecht (ZAIA) 366, 379 (2004).Google Scholar

38 Commentary of the Investment Committee, supra note 6, at Section I Conclusion of Procedures, at para. 7.Google Scholar

39 On the American case, see Euteneier, Gregory T., Towards a Corporate “Law of Nations”: Multinational Enterprises’ Contributions to Customary International Law, 82 Tul. L. Rev. 757, 773–774 (2007); On the German case, see Miriam Saage-Maaß & Anna von Gall, Fairer Wettbewerb Weltweit! Am Beispiel der “Lidl-Klage,” (Fairer Competition Worldwide: Using the Example of the “Lidl” Action) 4 Gegenblende (2010), available at: http://www.gegenblende.de/04-2010 (last accessed: 23 December 2011).Google Scholar

40 Euteneier, supra note 39, at 777.Google Scholar

41 Global Reporting Initiative, Sustainability Reporting Guidelines 32–38, available at: https://www.globalreporting.org/resourcelibrary/G3.1-Guidelines-Incl-Technical-Protocol.pdf (last accessed: 23 December 2011); More specifically on human rights reporting in the GRI framework, see A Resource Guide to Corporate Human Rights Reporting, available at: https://www.globalreporting.org/reporting/latest-guidelines/g3-1-guidelines/Pages/Human-Rights-and-Reporting.aspx (last accessed: 23 December 2011).Google Scholar

42 See Release, Press, OECD (2010), available at: http://www.oecd.org/document/23/0,3746,en_2649_34889_46674519_1_1_1_1,00.html (last accessed: 23 December 2011); Johnston refers to a document elaborating specifically on the linkage between GRI reporting obligations and the OECD Guidelines, which was however not retrievable from the GRI website. Johnston, supra note 4, at 250.Google Scholar

43 Annual Report of IC 127–130 (2008), available at: http://www.oecd.org/document/39/0,3746,en 2649_34889_42416807_1_1_1_1,00.html (last accessed: 23 December 2011).Google Scholar

44 The Annexes of the First Report distinguish between different groups of companies. Annex three lists those companies that are considered to have violated the Guidelines. See the Final Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of the Congo, UN Doc. S/2002/1146, Annex III (2002), at paras. 170–178.Google Scholar

45 Final Report of the Panel of Experts on the Illegal Exploitation of Natural Resources and Other Forms of Wealth of the Democratic Republic of Congo (Second report), UN Doc. S/2003/1027, Annexes (2003).Google Scholar

46 See SC Res. 1457 of 24 January 2003, at para. 13; Carrying out effective pressure on the relevant actors exploiting the natural resources of the Democratic Republic of Congo was requested after highlighting the report of the Panel of Experts also in SC Res. 1533 of 12 March 2004, at para.6.Google Scholar

47 Fauchild, Ole Kristian & Stigen, Jo, Corporate Responsibility before international institutions, 40 Geo. Wash. Int'l L. Rev. 1025, 1070 (2010).Google Scholar

48 OECD Risk Awareness Tool for Multinational Enterprises in Weak Governance Zones, avahttp://www.oecd.org/document/26/0,3746,en_2649_34889_36899994_1_1_1_1,00.html (last accessed: 23 December 2011); Also the recently adopted OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas can be seen in this context, as conflict usually goes along with a deterioration of the ability to maintain a functioning public order, available at: http://www.oecd.org/document/36/0,3746,en_2649_34889_44307940_1_1_1_1,00.html (last accessed: 23 December 2011).Google Scholar

49 OECD Risk Awareness Tool, supra note 48, at Appendix I, Glossary, “weak governance zones,” 42.Google Scholar

50 Risse, Thomas, Regieren in Räumen begrenzter Staatlichkeit. Zur “Reisefähigkeit” des Governance-Konzeptes (Governance Areas of Limited Statehood: The “Journey's Ability” Concept of Governance) 10 (2007).Google Scholar

51 The special situation in weak governance zones was highlighted in several instances handled by NCPs. See, the Final Statement of the French NCP, Nam Theun II Dam, Annual Report of IC 72–73 (2005), available at: http://www.oecd.org/document/45/0,3746,en_2649_34889_35845165_1_1_1_1,00.html (last accessed: 23 December 2011); see also the Final Statement of the UK NCP, Afrimex and DAS Air, Annual Report of IC 31–56 (2009) available at: http://www.oecd.org/document/12/0,3746,en_2649_34889_45381708_1_1_1_1,00.html (last accessed: 23 December 2011).Google Scholar

52 See Unilever and IUF Settlement concerning Lipton factory in Pakistan, Statement by IUF on the Settlement including information that all court petitions are withdrawn as part of the settlement, available at: http://www.iuf.org/cgi-bin/dbman/db.cgi?db=default&uid=default&ID=6281&view records=1&en=1 (last accessed: 23 December 2011).Google Scholar

53 International Law Association, Berlin Conference Final Report: Accountability of International Organizations (2004), available at: www.ila-hq.org/en/committees/index.cfm/cid/9 (last accessed: 23 December 2011).Google Scholar

54 ILA Report, supra note 53, at 6.Google Scholar

55 ILA Report, supra note 53, at 6.Google Scholar

56 There are four categories of principles in the report: first level of accountability (internal and external scrutiny in general), principles on liability/responsibility of international organizations, secondary principles on responsibility of International Organizations, remedies against International Organizations, ILA Report, supra note 53, at 1–3.Google Scholar

57 Interpretation of the Agreement of 25 March 1951 between the WHO and Egypt (Advisory Opinion), ICJ Reports 73, 90 (1980).Google Scholar

58 These internal rules are analyzed in particular within the GAL approach. See for various GAL studies, www.iilj.org/gal/bibliography/default.asp (last accessed: 23 December 2011).Google Scholar

59 Art. 12 Convention on the Organization for Economic Co-operation and Development, available at: http://www.oecd.org/document/7/0,3343,en_2649_201185_1915847_1_1_1_1,00.html (last accessed: 23 December 2011).Google Scholar

60 See for the historic development of the participation of Civil Society in the OECD, Woodward, Richard, Towards Complex Multilateralism? Civil Society and the OECD, in The OECD and Transnational Governance 77–95 (Rianne Mahone & Stephen McBride eds., 2008).Google Scholar

61 ILA Report, supra note 53, at 18; Schermers, Henry & Blokker, Niels M., International Institutional Law 832–835 (4th ed. 2003); August Reinisch, Governance Without Accountability?, 44 German Yearbook of International Law 270, 281–282 (2001).Google Scholar

62 In general, see Kadelbach, Stefan & Kleinlein, Thomas, Überstaatliches Verfassungsrecht (National Constitutional Law), 44 Archiv des Völkerrechts (AV) 235, 235–266 (2006); For the principle of democratic governance, see Thomas D. Franck, The Emerging Right to Democratic Governance, 86 Am. J. Int'l L. 46, 46–91 (1992); Gregory H. Fox & Brad R. Roth, Democratic Governance and International Law (2000); Niels Petersen, The Principle of Democratic Teleology in International Law, 34 Brook. J. Int'l L. 33–84, 334 (2008). For the rule of law, see Watts, Sir Arthur, The International Rule of Law, German Yearbook of International Law 15, 15–45 (1993); Simon Chesterman, An International Rule of Law?, 56 Am. J. Comp. L. 331, 331–361 (2008); Brian Z. Tamanaha, On the Rule of Law 127–136 (2004). For the principle of good governance, see Rudolf, Beate, Is “Good Governance” a Norm of International Law, in Völkerrecht als Wertordnung 1007–1028 (Pierre-Marie Dupuy, et. al. eds., 2006).Google Scholar

63 In this sense see Petersen, supra note 62, at 81–83. The norm on democratic governance is emerging since Franck's seminal article and opinions diverge on whether and in what shape it actually enjoys customary status. For support, see Gregory H. Fox, Internationalizing National Politics: Lessons for International Organizations, 13 Widener L. Review 265, 266. Critique to this approach, see Marks, Susan, The Riddle of All Constitutions (2000); Jackson Nyamuya Maogoto, Democratic Governance: an Emerging Customary Norm ?, 55 University of Notre Dame Australia Law Review 55, 55–79 (2003); A regional analysis of this norm might lead to more concrete answers to this question. Steven Wheatley, Democracy in International Law: A European Perspective, 51 Int'l Comp. L. Q. 225, 246–247 (2002); Christian Schliemann, Das Demokratiegebot in der Organisation Amerikanischer Staaten (The principle of democracy in the Organization of American States), 42 Verfassung und Recht in Übersee (VRU) 320, 344–348 (2009).Google Scholar

64 In fact, the literature on the international rule of law is dedicated either to the study of the rule of law existent in domestic jurisdictions as a general principle and thus conferrable to the international legal system or to an international rule of law directly applicable to lOs. Both will become relevant in our context but not in this part of the article dedicated to the application of state centered customary norms to lOs, although some elements of the international rule of law are exploitable in the present context justifying the conclusion reached above. For the rule of law as general principle see Chesterman, supra note 62, at 340–342.; Ernst-Ulrich Petersmann, How to Promote the International Rule of Law? Contributions by the World Trade Organization Appellate Review System, 1 J. Int'l Econ. L. 25, 30–31 (1998). Combining both approaches, see Watts, supra note 62, 17–42.; David Dyzenhaus, The Rule of (Administrative) Law in International Law, 68 Law & Contemp. Probs. 127, 165–166 (2005). For the international rule of law, see Kumm, Mattias, International Law in National Courts: the International Rule of Law and the Limits of the Internationalist Model, 44 Va. J. Int'l L. 19, 22 (2003).Google Scholar

65 Fassbender, Bardo, Targeted Sanctions Imposed by the UN Security Council and Due Process Rights, 3 International Organizations Law Review 437, 444, 447–450, 464 (2006).Google Scholar

66 Id. at 480.Google Scholar

67 ILA Report, supra note 53, at 33.Google Scholar

68 Rudolf, supra note 62, at 1026.Google Scholar

69 Id. at 1015.Google Scholar

70 See the section on the Legal Nature of the Guidelines.Google Scholar

71 See Gregory H. Fox on the usefulness and problems in transposing the international norm on democratic governance on International Organizations, see Fox, supra note 63, at 269, 275–276 (2007).Google Scholar

72 Dahl, Robert A., Can International Organizations be Democratic? A Skeptic's View, in Democracy's Edges 19 (Ian Shapiro & Casiano Hacker-Cordón eds., 1999).Google Scholar

73 For a proposal, see Vedder, Anton, Towards a Defensible Conceptualization of the Legitimacy of NGOs, in NGO Involvement in International Governance and Policy - Sources of Legitimacy 197, at 210–211 (Anton Vedder ed. 2007).Google Scholar

74 Rudolf, supra note 62, at 1009 et seq. Google Scholar

75 Hill, Hermann, Good Governance - Konzepte und Kontexte, in Governance-Forschung 220–223 (Gunnar Folke Schuppert ed. 2006).Google Scholar

76 Rosenau, James N., Governance, Order, and Change in World Politics, in Governance Without Government: Order and Change in World Politics 1, 4–7 (James N. Rosenau & Ernst-Otto Czempiel eds., 1992).Google Scholar

77 ILA Report, supra note 53, at 8.Google Scholar

78 For the United Nations, see Fassbender, supra note 65, at 447.Google Scholar

79 Wolfgang Weiß, Allgemeine Rechtsgrundsätze des Völkerrechts (General principles of international law) 39 AV 394, 409 (2001); see for the application of General Principles in the context of international criminal law, Separate Opinion of Judges MacDonald and Vohrah, Prosecutor v. Drazen Erdemovic, ICTY Appeals Chamber, decision of 07 October 1997, reprinted in (1998) I.L.R., vol. 111, at 314, 344.Google Scholar

80 Chesterman, supra note 62, at 355, but critical as to a transfer of a thick version at 358; For the completeness and certainty of the law as a general principle, see Watts, supra note 62, at 25–28; Fassbender, supra note 65, at 465; There is however doubt about this assumption, see Armin von Bogdandy, General Principles of International Public Authority: Sketching a Research Field, in The Exercise of Public Authority by International Institutions - Advancing International Institutional Law 727, 735–736 (Armin von Bogdandy ed. 2009).Google Scholar

81 Chesterman, supra note 62, at 342.Google Scholar

82 Bogdandy, von, supra note 80, at 740.Google Scholar

83 Rudolf, supra note 62, at 1019.Google Scholar

84 ILA Report, supra note 53, at 13, 28.Google Scholar

85 Bogdandy, von, supra note 80, at 746; von Bogdandy, et al., supra note 29, at 1396.Google Scholar

86 Id. at 749.Google Scholar

87 The only known case is the complaint submitted to the Finnish ombudsman claiming the lack of impartiality of the Finnish NCP in the Botnia Case. See on this: Schuler, supra note 4, at 1756–1757. There is however literature indicating that extraterritorial jurisdiction on corporate accountability before domestic courts is generally possible in many jurisdictions: Cedric Ryngaert & Jan Wouters, Litigation for Overseas Corporate Human Rights Abuses in the European Union: The Challenge of Jurisdiction, 40 Geo. Wash. Int'l L. Rev. 939, 939–975 (2009).Google Scholar

88 The international general principles were advocated as the appropriate source in particular for human rights and structural principles for the exercise of governmental authority in the domestic context. See: Philip Alston & Bruno Simma, The Sources of Human Rights Law - Custom, Jus Cogens and General Principles, 12 Australian Yearbook of International Law 82, at 102–106 (1988-1989); Niels Petersen, Der Wandel des Ungeschriebenen Volkerrechts im Zuge der Konstitutionalisierung (The change of the unwritten law in the course of writing a constitution), 46 AV 502, at 523 (2008). The contribution of lOs to the formation of international custom is recognized as it concerns customary norms for states. Both ideas are in principle exploitable for the creation of rules directly applicable to lOs.Google Scholar

89 ILA Report, supra note 53, at 6.Google Scholar

90 Woodward, supra note 60, at 89; Salzman, supra note 3, at 217.Google Scholar

91 OECD Watch Statement, supra note 10, at 2.Google Scholar

92 Id. Google Scholar

93 ILA Report, supra note 53, at 9.Google Scholar

94 Id. Google Scholar

95 Id. Google Scholar

96 Id. Google Scholar

97 BIAC, TUAC and OECD Watch all have separate agreements with OECD bodies on the access to internal information. The agreements were not retrievable on the OECD website. Information obtained in an interview with Kirsten Drew from TUAC of 15 December 2010.Google Scholar

98 OECD Watch, Ten Years O, 43 (2010), available at: http://www.oecdwatch.org/publications-en/Publication_3550/view (last accessed: 23 December 2011); Utz concluded her analysis on specific instances during 2000–2005 by stating that for one third of instances that were concluded the activities carried out by the NCP could not even be investigated. See Utz, Britta, Die OECD Leitsätze für Transnationale Unternehmen 67 (2006); Johnston, supra note 4, at 250.Google Scholar

99 OECD Guidelines—Procedural Guidance, supra note 6, at section I, National Contact Points.Google Scholar

100 OECD Guidelines— Commentary of the Investment Committee, supra note 6, at Section I, Transparency.Google Scholar

101 For an unsatisfactory example, try a search for the Spanish NCP on the Internet. For more information on the Spanish NCP, see Juan Hernández Zubizarreta, Las Empresas Transnacionales Frente a Los Derechos Humanos: Historia de una Asimetría Normativa (Multinational Companies Against Human Rights: The Story of a Policy Asymmetry) 439–441 (2009).Google Scholar

102 OECD Guidelines— Commentary of the Investment Committee, supra note 6, at Section I, Information and Promotion, 3–4.Google Scholar

103 OECD Guidelines— Procedural Guidance, supra note 6, at Section I, National Contact Points, C. 4. Implementation in specific instances; The confidentiality requirement only covers actions during the good offices procedures and therefore not the phase of the initial assessment. There is however indications that the initial assessment phase already involves an exchange of information and first fact-finding so as to resemble the second good offices phase. In this case it might be reasonable to apply the confidentiality principle, but and only with the consequence that the statement on an initial assessment must be as detailed as a final statement as concerns the reasons for its refusal. Information on the initial assessment phase is drawn from an interview with a former employee of the German NCP.Google Scholar

104 See on the shortcomings of various NCPs: OECD Watch, supra note 98, at 43.Google Scholar

105 The Procedural Guidance only requires a statement in case the NCP is of the opinion that the accusation does not merit further attention. Procedural Guidance, supra note 6, at Section I, National Contact Points, 3 (a). The commentary of the Investment Committee however clarifies that NCPs may also publish a statement in case the accusation does merit further attention, Commentary of the Investment Committee, supra note 6, at Section I, Conclusion of the Procedures, at paras. 2–3.Google Scholar

106 OECD Guidelines—Procedural Guidance, supra note 6, at Section I, National Contact Points, C. 3(a).Google Scholar

107 OECD Guidelines— Commentary of the Investment Committee, supra note 6, at Section I, Conclusion of the Procedures, para. 2.Google Scholar

108 Id. Google Scholar

109 Sometimes NCP do not even react to a submission: Utz names for example the Polish NCP and the US NCP, see Utz, supra note 98, at 67–70.Google Scholar

110 OECD Watch, The Confidentiality Principle, Transparency and the Specific Instance Procedure 5 (2006), available at: http://www.oecdwatch.org/publications-en/Publication_1678/ (last accessed: 23 December 2011).Google Scholar

111 See for the general development towards notification of the parties about the results of the initial assessment, Annual Report of IC (2008), supra note 43, at 89.Google Scholar

112 OECD Guidelines—Procedural Guidance, supra note 6, at Section I National Contact Points C. 4; Commentary of the Investment Committee, supra note 6, at Section I, Transparency and Confidentiality.Google Scholar

113 Annual Report of IC 55 (2003), available at: http://www.oecd.org/document/20/0,3746,en_2649_34889_20589588_1_1_1_1,00.html (last accessed: 23 December 2011).Google Scholar

114 OECD Watch, The Confidentiality Principle, supra note 110, at 4.Google Scholar

115 Heydenreich refers to this situation, Cornelia Heydenreich, Die OECD-Leitsätze für Multinationale Unternehmen - ElN WlRKSAMES Instrument ZUR Unternehmensregulierung? (The OECD Guidelines for Multinational Companies— An Effective Tool for Corporate Regulation?) 7 (2005), available at: http//www.germanwatch.org/tw/kw05ls.pdf (last accessed: 23 December 2011); see also ZlMMER, supra note 12, at 101, who refers to the average duration of 15 months and one instance that took 36 months, a period in which it is not reasonable to request NGOs or workers unions to remain silent.Google Scholar

116 OECD Guidelines— Commentary of the Investment Committee, supra note 6, at Section I, Indicative Timeframe 1–3.Google Scholar

117 Id. at Indicative Timeframe 2.Google Scholar

118 Id. at Indicative Timeframe 3.Google Scholar

119 OECD Guidelines— Procedural Guidance, supra note 6, at Part. I, National Contact Points, C.3 (b).Google Scholar

120 Id. Google Scholar

121 Id. at C.3(c).Google Scholar

122 OECD Guidelines— Commentary of the Investment Committee, supra note 6, at Section I, Conclusion of the Procedures, at para. 6.Google Scholar

123 The 2000 version of the Guidelines, including Procedural Guidance and Commentary of the Investment Committee, is contained in an OECD booklet OECD, http://www.oecd.org/dataoecd/56/36/1922428.pdf (last accessed: 23 December 2011); Procedural Guidance, Part. I, National Contact Points, C.4.b).Google Scholar

124 Utz, supra note 98, at 74–76.Google Scholar

125 See German NCP, Leitfaden zum Beschwerdeverfahren (Procedural Guidance for the Specific Instance Procedure) 4, available at: http://www.bmwi.de/BMWi/Redaktion/PDF/MO/oecdleitfadenzumbeschwerdeverfahren,property=pdf,bereich=bmwi,sprache=de,rwb=true.pdf (last accessed: 23 December 2011).Google Scholar

126 Utz, supra note 98, at 74–77; Fsor the US NCP, see Christopher N. Franciose, A Critical Assessment of the United States’ Implementation of the OECD Guidelines for Multinational Enterprises, 30 Boston College International and Comparative Law Review, 223–236 (2007).Google Scholar

127 Commentary of the Investment Committee, supra note 123, at para. 19; see against a general rule on publishing the results: BIAC, Contribution to the Annual Report of IC (2003), supra note 113, at 92. The Commentary of the Investment Committee in the new version also contains the provision cited here that the results will normally be transparent. See the Commentary of the Investment Committee, supra note 6, at Section I, Transparency and Confidentiality.Google Scholar

128 ILA Report, supra note 53, Principle on Reporting and Evaluation, Sections 1- 5, 12.Google Scholar

129 ILA Report, supra note 53, at Principle on Reporting and Evaluation, Section 2, 12.Google Scholar

130 OECD Guidelines— Council Decision, supra note 6, at Part. 2, The Investment Committee, 7.Google Scholar

131 TUAC Contribution to the Annual Report of IC (2002) 61, available at: http://www.oecd.org/document/11/0,3746,en_2649_34889_2410315_1_1_1_1,00.html (last accessed: 23 December 2011).Google Scholar

132 OECD Guidelines— Procedural Guidance, supra note 6, at Section I, National Contact Points, D.(1) (2).Google Scholar

133 OECD Watch Contribution to the Annual Report of IC (2003), supra note 113, at 102.Google Scholar

134 ILA Report, supra note 53, at Principle of Stating the Reasons for Decisions, 14.Google Scholar

135 OECD Guidelines— Commentary of the Investment Committee, supra note 6, at Section I, Reporting to the Investment Committee.Google Scholar

136 TUAC Contribution to the Annual Report of IC (2002), supra note 131, at 61.Google Scholar

137 The Procedural Guidance still only requires the IC to consider the reports of NCPs. OECD Guidelines—Procedural Guidance, supra note 6, at Section II, 3(a).Google Scholar

138 s, supra note 53, at Principles of Constitutionality and Institutional Balance, Section. 1, 12.Google Scholar

139 OECD Guidelines—Council Decision and Procedural Guidance, supra note 6, at 67–75.Google Scholar

140 ILA Report, supra note 53, at Principle of Good Faith 12. This general principle gives rise to sub-principles such as equal treatment of like cases. The equal treatment principle is not respected as regards the procedures and the institutional structure of the NCP including their financial resources as well as regards substantial issues. The 2011 version of the Guidelines remedies this arbitrary implementation to a certain extent. The Procedural Guidance and the Commentary of the IC now require the predictability of the specific instance procedures. The Commentary also introduces a paragraph requiring national governments to equip NCPs with financial resources for their proper functioning. OECD Guidelines— Procedural Guidance, supra note 6, at Section I, C; Commentary of the Investment Committee, supra note 6, at Preface and Section I, Guiding Principles for Specific Instances.Google Scholar

141 OECD Watch, The Confidentiality Principle, supra note 110, at 5.Google Scholar

142 ILA Report, supra note 53, at Principle of Supervision and Control, Section 1, 13.Google Scholar

143 Id. at Section 2, 13.Google Scholar

144 Id. at Section 3, 13.Google Scholar

145 OECD Guidelines— Procedural Guidance, supra note 6, at Section II, Investment Committee, 2(b) and (c).Google Scholar

146 Id. at Section II, 2 (d).Google Scholar

147 OECD Guidelines— Council Decision, supra note 6, at Section II, 4.Google Scholar

148 International Law Commission, Report on the 61st session, art. 5 Commentary 60 (2009), available at: http://untreaty.un.org/ilc/reports/2009/2009report.htm (last accessed: 23 December 2011).Google Scholar

149 Id. at art. 6 Commentary, 65.Google Scholar

150 Id. The position in the report of the International Law Association is similar, see ILA Report, supra note 53, at section 1–5, 28.Google Scholar

151 The Swiss request concerned the application of the Guidelines in domestic cases, Annual Report of IC (2005), supra note 51, at 26; The British request concerned the applicability of the old version of the Guidelines, Annual Report of IC 64–65 (2004), available at: http://www.oecd.org/document/20/0,3746,en 2649_34889_34325076_1_1_1_1,00.html (last accessed: 23 December 2011).Google Scholar

152 The request was not submitted as the clarification was considered as strategically counterproductive during the update deliberations. Information received in an interview conducted with Kirsten Drew from TUAC.Google Scholar

153 The statement can be found in the Annual Report of IC (2003), supra note 113, at 22.Google Scholar

154 Id. Google Scholar

155 Utz, supra note 98, at 84.Google Scholar

156 ZlMMER, supra note 12, at 96.Google Scholar

157 OECD Watch Statement, supra note 10, at 2.Google Scholar

158 See the statement of the Swedish NCP that judicial proceedings in Ghana, which is certainly not the paradigmatic case of a weak governance zone, are insufficient in resources and capacity. OECD, Annual Meeting of the National Contact Points, Report by the Chair 15 (2003), available at: http://www.oecd.org/dataoecd/3/47/15941397.pdf (last accessed: 23 December 2011).Google Scholar

159 A summary of the different position can be found in the Annual Report of IC 94 (2006), available at: http://www.oecd.org/document/40/0,3746,en_2649_34889_37785448_1_1_1_1,00.html (last accessed: 23 December 2011).Google Scholar

160 Id. at 97.Google Scholar

161 Id. at 96–98.Google Scholar

162 Id. at 27.Google Scholar

163 OECD Guidelines— Commentary of the Investment Committee, supra note 6, at Section I, initial assessment, para. 2.Google Scholar

164 See TUAC's analysis of procedural shortcomings in TUAC Contribution to the Annual Report of IC (2002), supra note 131, at 58. TUAC requested a clarification by the IC that was however not issued. Only a questionnaire was sent out to the NCP. The findings of the questionnaire were included in the Annual Report of IC (2003), supra note 113, at 22–25 and 45–56; OECD Watch Contribution to the Annual Report of IC (2008), supra note 43, at 126.Google Scholar

165 OECD Guidelines— Procedural Guidance, supra note 6, at Section II, 5 (c) and Commentary of the Investment Committee, supra note 6, at Section I, Peer Learning.Google Scholar

166 ILA Report, supra note 53, at Principle of Stating the Reasons for Decisions, Section 1, 13.Google Scholar

167 Id. at Section 2, 13.Google Scholar

168 Id. at Section 3, 13.Google Scholar

169 See the two clarifications in Annual Report of IC (2005), supra note 51, at 26; Annual Report of IC (2004), supra note 151, at 64–65.Google Scholar

170 OECD Guidelines—Procedural Guidance, supra note 123, at Section I, 4(b); Commentary of the Investment Committee, supra note 123, at Section I, para. 18–19.Google Scholar

171 OECD Watch, The Confidentiality Principle, supra note 110,at 6; see also the answers of 23 NCPs to the question whether they give reasons for their decisions, Annual Report of IC (2003), supra note 113, at 53–54.Google Scholar

172 BIAC, OECD Guidelines for Multinational Enterprises - Business Brief (2003), available at: http://www.biac.org/pubs/mne_guidelines/business-brief-1-2-final.pdf (last accessed: 23 December 2011).Google Scholar

173 A good example for a negative outcome is the Final Statement of the French NCP, Aspocomp, mentioning the company, the allegations, the facts and the norms violated. See Annual Report of IC (2004), supra note 151, at 76. A good example for a positive outcome is the Final Statement of the Chilean NCP, Marine Harvest Chile S.A., including information on company, allegations, facts, norms, and solutions to remedy the violations, available at: http://www.oecd.org/dataoecd/42/13/32429072.pdf. (last accessed: 23 December 2011); A positive example is also given with the Final Statement of the UK NCP, Peugeot, Annual Report of IC (2008), supra note 43, at 61–70.Google Scholar

174 Stakeholder Consultation Document on the UK National Contact Point's Promotion and Implementation of the OECD Guidelines 15 in, OECD Watch, The Confidentiality Principle, supra note 110, at 6.Google Scholar

175 See the section on transparency and access to information.Google Scholar

176 ILA Report, supra note 53, at Principle of Effective Remedy, Section 1, at 1, 33.Google Scholar

177 Id. at 33.Google Scholar

178 Id. at 33 et seq. Google Scholar

179 Id. at 33.Google Scholar

180 Id. at 34.Google Scholar

181 Id. Google Scholar

182 Id. at 37.Google Scholar

183 See TUAC Contribution to the Annual Report of IC (2005), naming these three in particular and others that do not comply with the rules on implementation. Annual Report of IC (2005), supra note 51, at 122.Google Scholar

184 Between 1977 and 2000, 35 clarifications were requested. Since the revision in 2000, only 2 more clarification requests were submitted. Utz, supra note 98, at 52.Google Scholar

185 OECD Guidelines— Procedural Guidance, supra note 123, at Section II, 3 (b) and (c).Google Scholar

186 OECD Guidelines— Council Decision, supra note 123, at Section II, Investment Committee, at para. 4.Google Scholar

187 For the competence of OECD Watch to request clarification, see OECD Guidelines— Procedural Guidance, supra note 6, at Section II, 2 (b) and (c); for the possibility of the parties to express their views, see OECD Council Decision, supra note 6, at Section II, 4.Google Scholar

188 ILA Report, supra note 53, at Principle of Objectivity and Impartiality, 14.Google Scholar

189 Schuler, supra note 4, at 1756; He describes an instance in which the Finnish NCP was accused before the Ombudsman of the Finnish parliament to be partial in its handling of a specific instance; also Queinnec, supra note 27, at 3.2; In the same vein, Contribution by OECD Watch to the Annual Report of IC (2005), supra note 51, at 134; see also the statement of the UK parliamentary commission on Human Rights that considered the lack of neutrality of the NCP as one of the major obstacles to an effective remedial body. Statement contained in OECD Watch, Ten Years On, supra note 98, at 50.Google Scholar

190 See the Annual Report of IC (2008), supra note 43, at 91.Google Scholar

191 See description in the Annual Report of IC (2008), supra note 43, at 12.Google Scholar

192 OECD Guidelines— Procedural Guidance, supra note 6, at Section I, A (1) and C. Commentary of the Investment Committee, supra note 6, at Section I, Guiding Principles for Specific Instances.Google Scholar

193 OECD Guidelines— Procedural Guidance, supra note 6, at Section I, A (1).Google Scholar

194 In this sense, see the ILA Report supra note 53, at Principle on objectivity and impartiality, 14.Google Scholar

195 I am indebted to a former employee of the German NCP who directed me towards this argument during an interview.Google Scholar