If a person or organisation believes that a company is not following the OECD Guidelines, he or she can report that opinion to the NCP. Conversely, a company that has a conflict with a stakeholder that arises from the OECD Guidelines can appeal to the NCP.
If the NCP declares that the report is admissible (see below), a mediation process will be launched with the aim of resolving the problem. At the end of the process, the NCP will issue a final statement describing the course of the process and the solution in relation to the OECD Guidelines. The NCP will publish a final statement even if the parties involved have not arrived at a solution. In that case, the NCP will not only describe the process, but also provide an assessment of the alleged violation of the OECD Guidelines, based on the NCP insights into the facts of the situation. NCP handling of a report cannot be considered legal proceedings, nor can compliance with the Guidelines be enforced by law. A final statement is therefore not a court ruling that can be appealed.
Below, the procedure is explained step by step. You can find a more detailed description of the procedure for handling specific instances as used by the Netherlands NCP here.
Specific instance procedure:
1. Optional preliminary consultation
2. Confirmation of receipt
3. Choice of NCP mediators
4. Determination of the admissibility of the report
5. Declaration of admissibility
6. Procedure for considering the specific instance
8. Final statement
9. Confidentiality and transparency while the report is being processed
10. Government response
11. Monitoring of agreements set out in mediation deal
The aim of a preliminary recommendation from the NCP is to offer a person who may be considering to submit a specific instance the opportunity to determine the likelihood of a complaint of being accepted and investigated, as well as any efforts that would be necessary before that point. This makes it possible to weigh the efforts against the expected results well in advance.
The secretariat sends the parties involved (the reporting person or organisation and the company) a letter of confirmation that the report has been received, enclosing a copy of the report for the company.
The NCP will appoint a primary mediator from among its ranks, based on considerations of background, knowledge, interest and availability. In principle, a second NCP member will be appointed as the co-mediator assigned to the case. If there may be a conflict of interests or an appearance of such conflict, the NCP member concerned will waive his or her involvement in the procedure.
In assessing the admissibility of the complaint, the NCP primarily seeks to answer the following questions:
4.1. The identity of the person or organisation submitting the report and any interests that party might have in submitting the report – this includes a review of whether the party is acting on another’s behalf
4.2. The substantial relevance and basis for the case – which aspects of the OECD Guidelines have been/are being violated according to the reporting party, and to which extent the facts of the matter have been described in a clear and substantiated manner.
4.3. The importance of legislation and procedures that may apply to the report – the NCP checks whether ‘parallel procedures’ are currently running with regard to the same situation or aspects thereof. If parallel procedures are currently underway, the NCP will consult with the parties involved to assess the extent to which NCP mediation and the associated activities would be appropriate and useful at that point in time.
4.4. How would consideration of the specific instance contribute to the purpose and effectiveness of the Guidelines – this includes the question of whether both parties would be open to mediation, which does not necessarily mean that the company concerned can back out of NCP involvement in the conflict by ‘taking a non-mediation stance’.
4.5. The competency of the Dutch NCP – in principle, a specific instance is dealt with by the NCP of the country in which the alleged violation is taking place or has taken place. If there is no NCP in that country, the complaint is reviewed by the NCP in the country where the company has its registered headquarters according to the trade registers.
Example: A report of a violation in Indonesia by a Dutch company would be handled by the Dutch NCP. As a non-OECD country, Indonesia does not have an NCP. If it concerns an alleged violation by a Dutch enterprise in one of the 40 countries that have adopted the Guidelines, the complaint should initially be brought to the NCP in that country. If that other NCP then asks the Dutch NCP for support, the Dutch NCP could provide such support in the form of e.g. information, advice, or mediatory assistance.
The NCP notifies the parties in writing as to its decision regarding the admissibility of a complaint (see above). This letter also includes the considerations on which the decision is based.
If the NCP declares that the complaint is inadmissible (see below), the letter will also set out the substance and the procedural outlines of the topics that may be covered.
After the report is declared admissible, the NCP discusses the complaint with the parties concerned and offers them its ‘good offices’ to contribute to a solution. Among other things, it may mean that the NCP seeks advice from relevant organisations, local or international experts, or other NCPs. If the interpretation of a specific aspect of the Guidelines is unclear, the NCP can submit a request for clarification to the OECD Investment Committee, via the State Secretary of Economic Affairs.
The procedural guidance to the OECD Guidelines mandates the NCP to seek advice from local relevant authorities, trade unions and experts, as long as it takes place within the framework of the mediation efforts. Such advice is sought in consultation with the parties involved and with their consent.
8.1. After successful mediation
If mediation is successful, the process concludes with a final statement from the NCP drawn up jointly by all parties. This statement will reflect the parties, facts and relevant aspects of the Guidelines concerned in the report and the solution that was agreed on in the end. Any agreements made pertaining to subsequent actions to monitor or supervise the agreements, concessions or improvements are also listed.
8.2. Failure to achieve results
If mediation was unsuccessful, the NCP draws up a final statement unilaterally. The emphasis in this case is on the NCP’s views on the facts, the interpretation of the relevant Guidelines and the course of the procedure, possibly also including the solution recommended by the NCP.
By virtue of their appointment to a government body, the NCP members are required to maintain confidentiality. However, this does not have to conflict with the aim of maintaining transparency. During the reporting procedure, the NCP distinguishes between a number of different types of information that are processed. First, there is the information that the reporting party already made public before the mediation process started. The NCP assumes that this information is allowed to remain available while the report is being processed. Secondly, there is the information about the course of the mediation process and the information used for the positions in the process. This information remains confidential throughout the procedure. Information that a party provides to the NCP is not shared with the other party without the provider’s consent. Finally, there is the category of sensitive business information which may be shared during the course of the process. This category of information will be kept confidential regardless. The NCP takes a flexible approach to these guidelines; besides this ‘standard formula’, it will consider how information provided by the parties will influence the mediation efforts. All parties should also be aware of the influence that any public statements or appearances may have on the mediation process.
Any considerations of confidentiality do not obstruct transparent operations for the NCP. The NCP will show the status of a report on its website unless one of the parties concerned has valid objections to such a listing. If a final statement would of necessity involve revealing sensitive business information, the NCP may choose not to issue such a statement. In that event, its decision will be reported on the website.
After the NCP has drawn up a final statement, it is sent to the State Secretary of Economic Affairs, who has one month to offer his views on the case, whether they concur or conflict with the views of the NCP. The NCP then publishes the final statement and any responses from the State Secretary on the NCP website.
Once both parties have reached agreement in the mediation process, subsequent agreements may be made. The extent of the NCP’s involvement in supervising compliance with the agreements can also be part of the overall agreement between parties.
The following deadlines are set for the reporting procedure:
• Confirmation of receipt of the report: no more than 7 working days after receipt;
• NCP determination of the admissibility of the specific instance: no more than 30 working days after receipt;
• Handling of the merits of the specific instance: no more than 6 months; a one-time three-month extension may be granted for ‘field investigations’ in foreign countries.
Deviations from the specified deadlines may be possible in exceptional cases. If deviations become necessary, the NCP will report such delays to the parties concerned and explain the reasons behind the decision.