OECD National Contact Points and the Extractive Sector: Workshop Report

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Published in IHRB and OECD NCP Norway

National Contact Points and the Extractive Sector
Workshop Report

23 March 2012, The British Academy, 10‐11 Carlton House Terrace, London

 1. EXECUTIVE SUMMARY

The 2011 revision of the OECD1 Guidelines for Multinational Enterprises (“the OECD Guidelines”)2 represents
a significant development and an opportunity for all parties to the OECD process – governments, civil society,
trade unions and businesses – to improve the protection of and respect for human rights.  The revised OECD
Guidelines include an entirely new chapter on human rights that builds on the United Nations Guiding
Principles on Business and Human Rights3 and strengthens the possibility of bringing complaints for
mediation to National Contact Points (“NCPs”) established pursuant to the OECD Guidelines.  The aim of the
Workshop in London was to raise awareness of the potential impact of the revised OECD Guidelines and ways
in which they might be used constructively to best protect human rights.

The extractive sector was chosen as the focus for the Workshop as nearly half of all existing complaints to
NCPs have related to this broad sector. It therefore represents a significant amount of prior experience and
insight in applying and participating in mediations under the OECD Guidelines.  As one speaker from the
mining sector put it, the ‘social license to operate’ is now as core to operations as any technical issue, and
there are often very significant business costs when this license is lost and trust breaks down. In this way,
mediation as established by the OECD Guidelines, particularly when professionally and impartially managed,
whilst still being overseen by the Home State, is very important in mediating between the interests of
businesses and rights-holders. The work of NCPs can be seen as a valuable opportunity for all businesses
seriously engaged in respecting the rights of individuals and their communities, but may also be seen as a
threat to those businesses that are not seeking to conduct their activities in a responsible manner.
The Workshop reflected emerging lessons around how NCPs can operate most effectively against their core
criteria set out in the Implementation Procedure of the OECD Guidelines4 of visibility, accessibility,
transparency and accountability to further the objective of functional equivalence between NCPs.  A number
of critical factors raised during the Workshop were: the competency and capacity of the NCP in relation to
mediation and how professionals were engaged; the perceived and actual impartiality and credibility of the
NCP; consistency and timeliness in dealing with complaints; understanding of the OECD Guidelines
themselves; and local knowledge and capacity where the complaint was located.

Many of these issues are reflected in the wording of the revised OECD Guidelines. There was broad support
from participants at the Workshop for the main additions in the 2011 OECD Guidelines revisions: the new
chapter relating to human rights; the more comprehensive approach to the full spectrum of business
relationships; additions to existing specialized chapters; clearer and reinforced procedural guidelines; and a
pro-active implementation agenda. It was also noted that the addition of an NGO (OECD Watch) as a key
implementation partner, alongside the main business association (BIAC) and trade union (TUAC) groups, was
an important development.

Discussions during the Workshop confirmed that although much had been achieved during the 2011 revision
process to empower NCPs, the effectiveness of these reforms would be determined by the quality and
quantity of NCP activity and statements over the months and years ahead.  Early indications are that there
will be an upsurge in activity, particularly amongst NCPs that have been less active over recent years.
Participants noted that while complaints relating to the extractive sector may continue to represent the
largest number by sector, interest in other business sectors is likely to increase as well – in particular those
sectors with significant global supply chains. Some NCPs are actively engaged not only in developing their
own capacity to respond to such changes, but also in supporting other NCPs through specific training and
capacity-building exercises. As the profile and reputation of NCPs increases so will the workload.

Some fundamental challenges remain. The first relates to the level of trust between some of the stakeholders
involved and also their perceptions about the true motivations of others. Transparency on the NCP process
and outcome was highlighted by many as key to building trust, while others emphasised the need for
confidentiality. All recognized the need to protect sensitive information exchanged during the Specific
Instance process, but many participants, including several NCPs, noted that procedural elements and results
of a Specific Instance should in general be transparent. The Workshop discussion surfaced levels of mistrust
that exist between some businesses and civil society organizations when entering into mediation. Also
evident is a lack of trust by stakeholders in the commitment of some governments to administer mediation
processes rigorously and impartially.  One business representative underscored that the NCP also needed to
be seen as competent and trusted by both parties in order to achieve a mediated result.

A second challenge is the ‘agreement to disagree’ between NCPs as to whether or not NCPs should make
‘determinations’ as to whether a company has breached the OECD Guidelines in cases where mediation fails
to resolve the issue(s) at hand. For some NCPs, such determinations are clearly a core part of operations and
are also perceived to be a useful way of encouraging companies into a mediation process. Others do not
share this view and point to the possibility of determinations affecting the motivations of those bringing
complaints and their willingness to enter mediation in good faith.

Arguments for and against NCP public determinations will not be settled lightly or quickly. However, given
that all NCPs are now governed by the principle of transparency, and public disclosure at key points in the
process, consensual statements involving all the parties might also appear more regularly – highlighting
original differences, but also common understandings of human rights due diligence and remedial action.
Greater disclosure by all NCPs about the participation of all parties in the process and assessment of specific
instances, through consensus whenever possible and if necessary without consensus, should begin to build a
more virtuous circle.

As NCPs build up further experience around applying the human rights chapter of the revised OECD
Guidelines, in particular with respect to the human rights due diligence provisions, and begin to make these
findings public, greater clarity will be achieved for all participants around expectations of companies in
addressing human rights.  One business representative stated that companies falling short of these
expectations, and not willing to enter into mediation might face increasing pressure from investors, the
media and politicians to do so. The consequences for businesses not willing to engage in NCP mediation have
been light to non-existent in the past, but might be more significant in the future.

There was a generally expressed view amongst many NCP participants in the Workshop that it was
constructive to engage with businesses directly outside of the context of a specific complaint and that events
such as the one held in London could help enable the ‘pro-active implementation’ agenda – to apply the
OECD Guidelines in a pro-active and preventive way in order to minimize situations that rise to a level of
breach of the OECD Guidelines. Extractive companies appear to be making progress in becoming more
familiar with the NCP network and their ability to use NCPs for advice and other functions and not just in
response to complaints. Similarly, NCPs are recognizing the benefits of raising their profile amongst a much
wider swath of civil society and trade unions and to communicate proactively the benefits of mediation.
Industry organisations, such as the International Council on Mining and Metals, have also proven to be
valuable contributors to this process.

BOX ONE: THE MAIN AREAS OF DISCUSSION AT THE WORKSHOP

•Opportunities presented by the revised OECD Guidelines
•Diverse views on public determinations
•Building trust among stakeholders
•Elements of effective mediation
•Trends associated with a more comprehensive approach
•Interpretative role of NCPs
•Consequences and outcomes
•Shaping a pro-active implementation agenda
These issues are discussed further in Section Three of this report.

2. BACKGROUND TO THE WORKSHOP

The Workshop was held in London on 23 March 2012 under the Chatham House rule of non-attribution. This
report does not attribute specific comments to any individuals. A full list of those who attended can be found
in the Appendix. Specific references are made to organizations in this report when information was
presented formally at the Workshop and is derived from publicly available material. Participants in the
Workshop included representatives from 12 different NCPs (from Europe, South America and North
America), 19 extractive companies, as well as investors, business organisations and associations and 13 civil
society organisations and trades unions. The Workshop was organized by the Institute for Human Rights and
Business (IHRB) and financed by the Norwegian National Contact Point. The event was also supported by the
International Council on Mining and Metals, many of whose members attended.

2.1 Background to the OECD Guidelines and the role of NCPs

The OECD Guidelines on Multinational Enterprises currently5 list 42 adhering Governments: 34 of whom are
OECD members6 as well as Argentina, Brazil, Colombia, Egypt, Latvia, Lithuania, Morocco, Peru, and Romania.
All participating Governments are required to establish and facilitate the activities of an NCP but there is no
single organisational  format for doing so: twenty NCPs are single government departments, eight are
multiple government departments, two are bipartite (Government and Business), nine are tripartite
(Government, Business and Trade Union), one is quadripartite (Government, Business, Trade Union and NGO)
and another two are constituted of independent experts. Denmark has recently become the first state to re-
instate its NCP through dedicated primary legislation – it is perhaps too early to determine whether this
represents an additional trend.

As of March 2012, 62 (48%) of the 128 OECD Guidelines cases brought forward by civil society organisations
relate to the extractive sector7. Of these, the top five subject countries have been: Democratic Republic of
Congo (17), Turkey (9), Zambia (7), Argentina (3) and Papua New Guinea (3). The NCPs involved in dealing
with the most extractive industry cases have been the UK (13), United States (9), Canada (8), Belgium (7),
Norway (4) and the Netherlands (4). The effectiveness of the outcomes in relation to all these cases is
contested, but OECD Watch figures suggest that the practice of the NCPs vary greatly. OECD Watch analysis
suggests that only a small minority of cases included thorough assessment of the merits of the claim, while
the majority of cases could not be classified as having been dealt with satisfactorily.

In 2011,  member states agreed significant developments to the OECD Guidelines for Multinational
Enterprises.  Changes include:
– A new chapter specifically addressing human rights based on the United Nations (UN) ‘Protect,
Respect, Remedy’ framework and UN Guiding Principles on Business and Human Rights;
– A new and more comprehensive approach, including the application of due diligence to supply chains
and other relevant business relationships;
– Significant modifications to existing specialized chapters of the OECD Guidelines (such as labour and environmental standards, bribe solicitation and extortion);
– Clearer and reinforced procedural guidelines, including on transparency, to strengthen the work of
NCPs;
– A pro-active implementation agenda to help enterprises and other stakeholders address emerging
changes in the area of corporate responsibility;
– New partners mentioned in the introduction as well as the addition of an NGO (OECD Watch) as a key
implementation partner, alongside the main business association (BIAC)8 and trade union (TUAC)9
groups.

2.2 Agenda of the Workshop

Session 1: Opening

Following introductory remarks by the Institute for Human Rights and Business, the Norwegian National
Contact Point and the International Council on Mining and Metals, opening presentations were given by Hans
Petter Graver, Chair of the Norwegian National Contact Point, and Roel Nieuwenkamp, Managing Director,
Dutch Ministry of Economics (member of the OECD Investment Committee and chair of the 2011 working
party for the new OECD Guidelines). The session was chaired by Aidan Davy, Director of the International
Council on Mining and Metals.

Session 2: The role of advice, dialogue and mediation: What have we learned so far?

Presentations were given by Dina Aloi, Vice President, Corporate Social Responsibility, Goldcorp Inc; Austin
Onuoha, Executive Director, Africa Centre for Corporate Responsibility; Herman Mulder, Independent
Member, Dutch National Contact Point/ GRI Chair. The session was chaired by Caroline Rees, President of
Shift.

Session 3: The role of communication, public statements and determinations: What have we learned so
far?

Presentations were given by: Danish Chopra, Deptartment for Business, Innovation and Skills, UK National
Contact Point; John Gilbert, Senior Counsel, BP plc; Joseph Wilde‐Ramsing, Senior Researcher, SOMO (OECD
Watch). The session was chaired by Chris Avery, Director of the Business and Human Rights Resource Centre.

Session 4: The responsibility to respect: The potential contribution of National Contact Points moving
forward

The discussion was initiated by reflections from: Hege Rottingen, Head of NCP Secretariat, Norwegian
Ministry of Foreign Affairs; Vicky Bowman, Global Practice Leader, Rio Tinto plc; Gregory Maggio, US
Department of State, Special Advisor to National Contact Point. The discussion was chaired by John Morrison,
Executive Director of the Institute for Human Rights and Business.

3. MAIN AREAS OF DISCUSSION

3.1 Opportunities presented by the revised OECD Guidelines

The revised OECD Guidelines bring a particular focus to human rights issues as well as a wider perspective on
more complex business relationships than had previously been the case. As a significant intergovernmental
state-based mechanism for interpreting the UN Guiding Principles on Business and Human Rights that have
been incorporated into the updated OECD Guidelines, the work of NCPs presents an opportunity for all
parties to better understand and apply the corporate responsibility to respect human rights in company
operations and business relationships.  The NCP process also presents a significant opportunity to develop
practice and expertise in dealing with specific grievances – a principle that is core to the underlying UN
Guiding Principles and OECD Guidelines.

In order to understand the full nature of the opportunity, it is important to be clear about what the OECD
Guidelines and NCPs are not intended to do, or, nor likely, to accomplish. First, it would be a mistake to see
NCPs as providing remedies akin to legal remedies that might be delivered by a court of law in most
jurisdictions.10  As one speaker put it:

“A system primarily focused on mediation is not always appropriate for resolving cases of grave human
rights abuse and environmental damage which can be associated with extractive industry cases.”11

This then puts limits on the nature of some of the cases that might be brought forward or the forum in which
they are addressed.

Second, the way in which cases are dealt with under the OECD Guidelines is significant. In cases where courts
are in practice unavailable for victims of human rights abuses, the NCPs may represent the only available
arena for dialogue with a company accused of actions which are in breach of human rights standards. If
dialogue is rejected, a NCP final statement may be better than nothing, and in some cases the best solution
out of available options. The UK NCP “Vedanta case”12 and the Norwegian “Intex case”13 provide two such
examples.

NCP participants in the Workshop underscored that it is unwise to expect NCPs to be too proactive in finding
complaints themselves, due to limited resources and also their own neutrality. Complaints need to come
from stakeholders themselves. NCPs are also aware that they might be distant geographically from affected
communities and it is companies themselves that are often best placed to address alleged harms, provide
redress and achieve adequate settlements.  Nevertheless, some OECD Governments do have significant
diplomatic and research capacity available for their NCPs,  at embassy and consular level in particular
countries. Whilst the legal principle of exhausting all local remedies applies in the case of hard law
mechanisms, the ‘soft law’ status of the OECD Guidelines does allow for immediate and direct trans-national
involvement – particularly if the main intention is to mediate.

BOX TWO: EFFECTIVENESS CRITERIA FOR NON-JUDICIAL GRIEVANCE MECHANISMS14

(a) Legitimate: enabling trust from the stakeholder groups for whose use they are intended, and
being accountable for the fair conduct of grievance processes;
(b) Accessible: being known to all stakeholder groups for whose use they are intended, and
providing adequate assistance for those who may face particular barriers to access;
(c) Predictable: providing a clear and known procedure with an indicative timeframe for each
stage, and clarity on the types of process and outcome available and means of monitoring
implementation;
(d) Equitable: seeking to ensure that aggrieved parties have reasonable access to sources of
information, advice and expertise necessary to engage in a grievance process on fair, informed
and respectful terms;
(e) Transparent: keeping parties to a grievance informed about its progress, and providing
sufficient information about the mechanism’s performance to build confidence in its
effectiveness and meet any public interest at stake;
(f) Rights-compatible: ensuring that outcomes and remedies accord with internationally
recognized human rights;
(g) A source of continuous learning: drawing on relevant measures to identify lessons for
improving the mechanism and preventing future grievances and harm.
There was general agreement at the Workshop that significant improvements had been made in the revised
OECD Guidelines to align with most of these effectiveness criteria, specifically “NCPs will operate in
accordance with core criteria of visibility, accessibility, transparency and accountability to further the
objective of functional equivalence.”15  Speakers tended to link the legitimacy of the mediation in large part
to the quality of the process, highlighting:
• The quality of the NCP’s performance relating to the effectiveness criteria listed above;
• The capacity and expertise of the NCP to mediate in a timely and professional manner (with some
hiring professional mediators as part of the process), and to undertake authoritative research as or
when this is appropriate;
• The need for trust between all stakeholders is central and related to necessary levels of
accountability and transparency balanced with necessary confidentiality;
• Clarity of expectations;
• The whole experience has to be meaningful and to produce tangible results for those concerned and
most importantly those on whose behalf the complaints are lodged – the victims themselves.

3.2 Public Determinations: Diverse perspectives on NCP roles remain

Participants agreed that the 2011 revisions to the OECD Guidelines constituted an overall improvement and
step forward although it was suggested that more could have been done to ensure NCPs reform themselves.
It was also noted that the extent to which the OECD Investment Committee will seek to guide the work of
NCPs moving forward remains in question.

“It is best to be transparent about the fact that OECD Member States could not reach a common
position on the determination processes: some see them as an essential part of the work of NCPs,
others do not. In the case of the Norwegian NCP, for example, determinations are a key part of the
mandate and an expectation of wider society.”16

The revised OECD Guidelines do not require NCPs to make public determinations against a business, should
they fail to engage in mediation or do so in bad faith, but neither do they prohibit this. Three of the NCPs
that best fulfil the effectiveness criteria and have also succeeded in mediation in recent years – those of the
UK, the Netherlands and Norway – have all made public determinations. This might suggest the potential
effect of public determinations in achieving focus and outcome in mediations as some participants claimed.
Others argued that the public determinations have been most attractive to NGOs lodging complaints. Moving
forward, diverse views amongst NCPs on this issue will likely continue, but greater alignment around the
process and scope of the OECD Guidelines in most other respects should create a more level playing field.

3.3 Building Trust

Trust seemed to be a central commodity for all present at the Workshop. On the positive side, the fact that
the Workshop was able to bring together such diverse stakeholder groups in a context outside of the OECD in
Paris was a positive indication of good faith surrounding the revised OECD Guidelines. So too, as was noted
several times, was the incorporation of OECD Watch (the specialist NGO focusing on the OECD Guidelines) as
a named actor to the OECD Guidelines themselves.

Whilst it is clear that trust exists between some extractive companies, some NGOs and some trade unions, it
would be wrong to underestimate the level of mistrust that remains between constituencies. The concept of
legitimacy has a core place in the UN Guiding Principles on Business and Human Rights in relation to the
effectiveness of grievance mechanisms (see Box Two above) and it can be seen as a cornerstone to trust
more generally in relation to the OECD Guidelines. There is a strong correlation: trust cannot be developed
without legitimacy, nor can legitimacy be developed without trust. In this way, the governance and
operational integrity of the NCP is critical.

Transparency and disclosure were seen as important markers for building relationships and trust if balanced
with the need to retain confidentiality at the mediation stage and with regards to any information that might
harm the safety and well-being of participants or reveal commercially confidential information that might
significantly damage the company’s interests.

Perhaps the most difficult trust-deficits to address were perceptions of bad-faith between the motives of
companies and civil society and vice versa. It was clear that there are specific cases where both parties feel
that the other entered mediation with no intention of it succeeding, or refused to enter mediation at all
hoping the complaint would then disappear (from a business perspective) or that the NCP might initiate

research leading to a possible public determination with an opportunity to highlight this in the press (from
the perspective of civil society).  Such alleged ‘gaming’ of the system is perhaps inevitable to some degree,
but it is clearly incumbent on NCPs moving forward to be rigorously fair in their assessment of motivations.
Such assessments cannot be blind to the resources available to the parties. Significant imbalances of power,
capacity and expertise between parties should also be factored into NCP engagement.

3.4 What makes mediation effective?

There is no single and comprehensive data set on what makes mediation between business and civil society
on issues of human rights effective, but experiences are accumulating. For example, experience in the Niger
Delta over recent years shows a broad range of issues being raised during mediation (see Box Three below).

BOX THREE:

MOST FREQUENTLY CITED SPECIFIC ISSUES RAISED BY COMMUNITIES IN
MEDIATION WITH EXTRACTIVE COMPANIES IN THE NIGER DELTA, NIGERIA17

• Land/water
• Funding
• Leadership
• Employment
• Scholarship
• Exclusion
• Preferential treatment/ double standards
• Communication
• Prevention of interface with company contractors
• Lack of remuneration for community officials
• Over-bearing influence of company
• Side-tracking of existing community governance structures
• Non-recognition of traditional rulers
• Lack of trust
• Perception that company imposes decisions
• Contracts
• Unclear allocation of roles/ responsibilities
Other examples from a range of countries discussed during the Workshop address similar issues.
Experiences concerning mediation processes relating to the Baku-Tbilisi-Ceyhan Pipeline were shared and
public commitments made as a result of the process were discussed. This contrasted with a number of other
British companies who have refused to engage in mediation and some of whom have been the subjects of
determinations by the UK NCP.

3.5 Likely Trends associated with a more comprehensive approach

The consequences of a more comprehensive approach under the revised OECD Guidelines could only be
speculated at as most NCPs have yet to undertake any mediation, make statements or determinations since
the revised OECD Guidelines came into effect in 2011. However, the Norwegian NCP’s experiences both of
mediation and determination might be indicative of a significantly more intensive and rigorous process over
the months and years to come. Box Four below describes the main trends identified during the Workshop.

BOX FOUR: TRENDS IN OECD GUIDELINES IMPLEMENTATION

• Increased activity across a greater number of NCPs over the months and
years ahead is expected, along with a growing need for increased oversight
by the OECD Investment Committee to help ensure consistency of approach;
• Differences of perspective concerning public determinations will remain one
area of significant distinction between NCPs certainly in the short term;
• Inclusion of a detailed human rights chapter in the revised OECD Guidelines
is likely to increase the number of human rights-related complaints and lead
to consideration of a much broader range of human rights issues in addition
to those associated with worker rights, conflict and indigenous peoples;
• With the lifting of the ‘investment nexus’ requirement in the OECD
Guidelines, a wider spectrum of complaints relating to other types of
business relationships is likely, in particular supply chain relationships,
noting also the OECD’s forthcoming work on the finance sector;
• Extractive sector will likely remain the most prevalent sector in terms of
complaints, but other business sectors will feature increasingly often – in
particular those with significant global supply chains. The specific inclusion
of protecting freedom of association on the Internet is likely to become a
focus, and also relates to OECD’s work on conflict minerals;
• Public disclosure and public and political awareness of the role of NCPs will
increase;
• The Dutch, UK, German and Norwegian NCPs have all engaged in awareness
raising activities with their national companies. This trend is likely to develop
amongst NCPs globally. It should be noted that the Danish NCP will now have
a significant national profile given the primary legislation developed for its
new incarnation;
• More focus on disclosure including around taxes.

3.6 The interpretative role of NCPs

NCPs will become an increasingly important source of understanding and interpretation not just of the OECD
Guidelines, but also potentially in the context of the UN Guiding Principles on Business and Human Rights.
Clearly, NCPs might need to look at other interpretations of similar complaints when undertaking mediation
and this becomes essential if public statements are to be made at the end of mediation or at the end of a
determination process. Understanding what the corporate responsibility to respect human rights (and
especially human rights due diligence) means in concrete terms for the extractive sector and other sectors
globally will be a complex and iterative process involving many actors, including the industries themselves.
The most authoritative source of guidance and interpretation will be the work of the United Nations Expert
Working Group on Business and Human Rights, inter-governmental organizations (such as the sector-specific
guidance currently being developed by the European Commission) and national initiatives such as national
legislation, judicial rulings or the work of National Human Rights Institutions or Multi-Stakeholder Initiatives.
NCPs may also refer to industry specific guidance from ICMM, as was done by the Norwegian NCP in the
Intex case.

There are several conceptual areas now contained in the revised OECD Guidelines that will need careful
interpretation by NCPs. These include:

1.  The degree to which a business is associated with a potential or actual alleged abuse of human rights
via causation, contribution or linkage through their own operations or through business relationships
and the appropriate response;
2.  Thresholds of adequacy – what should be considered as reasonable due diligence and transparency on
the part of extractive and other companies in light of foreseeable risks and impacts, following the UN
Guiding Principles approach to ‘knowing and showing’;
3.  The appropriate balance between preventive steps to avoid negative impacts and mitigation to
address negative impacts, and remedies for harms caused;
4.  The leverage the company had, or might have acquired, to prevent or respond to harm.
The interpretative role of NCPs might have a cumulative effect and contribute to methodological learning
within and across NCPs akin to ‘jurisprudence’ (although clearly not in any legal sense). The development of a
body of knowledge will depend on levels of disclosure, not just in the issuing of NCP determinations when
appropriate, but also public statements following mediation, with the consent of all parties, and in which
specific aspects of interpretation could be cited.

3.7 Consequences and Outcomes

“The revised OECD Guidelines are not as soft as they might look, there will be increasing consequences
for companies unwilling to engage in mediation.”18
It is recognized that, for a range of reasons, NCPs will not be able to provide an adequate outcome in every
case, both in terms of remedy for victims where allegations are borne out as well as consequence for those
responsible for any abuse. Therefore, NCPs need to ensure they do not hinder or undermine access to justice
and, where possible, enable – or increase the likelihood – of consequences for those found to be responsible,
through other non-judicial means. Where relevant, the NCP should refer to more appropriate authorities if the issues at hand are beyond the NCP mandate. States themselves should seek more effective and
appropriate ways of dealing with cases that are beyond the competence or capacity of an NCP.

When a business refuses to enter into mediation, or even to communicate with the NCP, there was a call for
NCPs to respond vigorously and ensure appropriate consequences. The most basic of these would be to
disclose publicly that the company concerned was unresponsive.

If the NCP moves forward to conduct its own research, there is the potential of issuing an assessment of
responsibility, and an analysis of deficits in prevention or mitigation. When NCPs do communicate
determinations, these can have a number of possible consequences for the party found to be at fault. If a
business, investors might look closely at the case and possibly divest from the company concerned (as, for
example, the Norwegian Pension Fund has done).  It is also possible for a Government to consider the
determination in relation to applications for public support (export credit), public procurement or trade
missions.

3.8 Pro-active implementation agenda

NCPs can undertake a wide range of activities to raise awareness amongst businesses and prevent abuses
from occurring by increasing capacity for effective human rights due diligence.  Some of the examples
discussed during the Workshop included:

•Surveys on the OECD Guidelines for MNEs show that knowledge is low. The Norwegian NCP surveyed
600 Norwegian companies for knowledge on the OECD Guidelines in June 2011 and will repeat the
survey in 2012. The UK NCP surveyed FTSE 100 companies, 12 UK-based business organisations, 32
UK-based NGOs and 27 UK-based trade unions in January 2012.
•Outreach – one NCP is focusing on outreach in particular to BRIC nations to encourage adherence with
the OECD Guidelines.
•Consistency – promoting a level playing field in the implementation of the OECD Guidelines across
OECD countries.
•Spreading best practice – NCPs share best practices at annual meetings under the auspices of the
OECD, but also through direct contact in specific cases or on more general issues.

4. ENDNOTE

The Workshop did not intend to produce specific recommendations for governments, businesses or other
stakeholders. It is clear that such workshops, outside of the daily business of either the OECD or specific
NCPs, can add value to all parties and widen the community of interest around the OECD Guidelines
themselves. The Institute for Human Rights and Business (IHRB) welcomes comments on this report sent to:
feedback@ihrb.org along with proposals for similar events that could contribute to deepening understanding
amongst all relevant actors.

IHRB has no specific status with respect to the OECD Guidelines, but is committed to continuing to play a
catalytic role as or when appropriate.  Beyond the extractive sector specifically, the Institute has been asked
to consider hosting a follow-up meeting in early 2013 focusing on the impact of the revised OECD Guidelines
on supply chain relationships. References in the OECD Guidelines to freedom of expression, assembly and
association with respect to the Internet and how these might be interpreted are also being studied in this
context.

1 The Organization for Economic Co-operation and Development (OECD)
2 http://www.oecd.org/document/28/0,3746,en_2649_34889_2397532_1_1_1_1,00.html
3 http://www.business-humanrights.org/media/documents/ruggie/ruggie-guiding-principles-21-mar-2011.pdf
4 Implementation Procedure for OECD Guidelines, Procedural Guidance, p. 71,
http://www.oecd.org/dataoecd/43/29/48004323.pdf
5 OECD (2011) Annual Report on the OECD Guidelines for Multinational Enterprises 2011: A New Agenda for the Future;
OECD Publishing, Paris.
6 The OECD member countries are: Australia, Austria, Belgium, Canada, Chile, the Czech Republic, Denmark, Estonia,
Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Israel, Italy, Japan, Korea, Luxembourg, Mexico, the
Netherlands, New Zealand, Norway, Poland, Portugal, the Slovak Republic, Slovenia, Spain, Sweden, Switzerland, Turkey,
the United Kingdom and the United States.
7 Source: This information is from OECD Watch (2012) prepared for the meeting.
8 Business and Industry Advisory Committee (BIAC) to the OECD.
9 Trade Union Advisory Committee (TUAC) to the OECD.
10 It is noted, however, that mediation is an acceptable outcome of some court-based legal mechanisms, such as family
law or what might be labeled ‘alternative dispute resolution’ mechanisms.
11 Quote from a Workshop participant.
12 www.bis.gov.uk/policies/business-sectors/low-carbon-business-opportunities/sustainable-development/corporate-
responsibility/uk-ncp-oecd-guidelines/cases
13 www.regjeringen.no/upload/UD/Vedlegg/ncp/intex_final.pdf
14 Included in the United Nations, ‘Protect, Respect, Remedy’ Framework on Business and Human Rights (2008) and the
Guiding Principles on Business and Human Rights (2011), United Nations Human Rights Council, Geneva.
15 Implementation Procedure for OECD Guidelines, Procedural Guidance, p. 71,
http://www.oecd.org/dataoecd/43/29/48004323.pdf
16 Quote from a Workshop participant.
17Based on research conducted in the Niger Delta with over one hundred community-based organizations.
18 Quote from a Workshop participant.

APPENDIX: RESOURCES

2011 OECD Guidelines:
www.oecd.org/dataoecd/43/29/48004323.pdf
Business and Industry Advisory Committee to the OECD (BIAC):
www.biac.org
Trade Union Advisory Committee to the OECD (TUAC):
www.tuac.org

OECD Watch:
www.oecdwatch.org
Business and Human Rights Resource Centre:
www.business-humanrights.org
Institute for Human Rights and Business (IHRB):
www.ihrb.org

APPENDIX: LIST OF PARTICIPANTS
Governments and National Contact Points (NCPs)
Juan Manuel Uribe – Embassy of Colombia to the UK
Joachim Steffens – Federal Ministry of Economics and Technology, Germany
Hendrik Zechner – Federal Ministry of Economy, Family and Youth, Austria
Kristin Palsson – Ministry for Foreign Affairs, Sweden
Roel Nieuwenkamp – Ministry of Economics, Netherlands
Hege Rottingen – Norwegian NCP
Gregory Maggio – US State Department
Christina Skagen – Danish Business Authority
Hans Petter Graver – Norwegian NCP
Herman Mulder – Dutch NCP
Danish Chopra – UK NCP
Andrea Paola Pradilla-Cont – Colombian NCP
Ambassador Santos Goni – Argentinean NCP
Collette Vanstraelen – Belgian NCP
Companies, Business Associations and Investors
Alanna Heath – Barrick Gold
Ian Wood – BHP Billiton
Vicky Bowman – Rio Tinto
Liesel Mack Filgueiras – Vale
Juanita Olaya – Cerrejon
Ines Andrade – Cerrejon
Thabani Mlilo – AngloGoldAshanti
Rachel Cowburn-Walden – Unilever
Tam Nguyen – Chevron
Miles Seaman – formerly of Lloyds and Technica
John Gilbert – BP
Dina Aloi – Goldcorp
Roper Cleland – IPIECA
Philip Ruck – IPIECA
Ross Gallinger – Prospectors and Developers Association of Canada (PDAC)
Aidan Davy – International Council on Mining and Metals (ICMM)
Richard Brophy – Herbert Smith
Stephane Brabant – Herbert Smith
Rae Lindsay – Clifford Chance
Hilde Roed – Statoil
Civil Society, Trade Unions and Investors
Louise Haigh – Office of Lisa Nandy MP, British Parliament
Peter Frankental – Amnesty UK
Tricia Feeney – Rights and Accountability in Development (RAID)
Chris Avery – Business and Human Rights Resource Centre (BHRRC)
Joseph Wilde-Ramsing – SOMO
Caroline Rees – SHIFT
Austin Onuoha – Africa Centre for Corporate Responsibility
Anne Lindsay – CAFOD
Adrienne Margolis – Lawyers for Better Business
Jim Catterson – International Federation of Chemical, Energy, Mine and General Workers’ Unions
John Howchin – Ethical Council of Swedish Pension Funds
Saskia van den Dool – PGGM Investments
Institute for Human Rights and Business (IHRB)
John Morrison – IHRB
Kelly Davina Scott – IHRB
Haley St Dennis – IHRB
Margaret Wachenfeld – IHRB

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