6 March 2019

Peer Review Calls for Strengthening of U.S. NCP; Fails to Account for Key Stakeholder Input

As the global business landscape continues to expand and shift, there is a pressing need for corporate accountability in the world. Effective avenues where people can seek remedy for harm caused by businesses are crucial. In the United States, the U.S. National Contact Point (U.S. NCP) is meant to serve as a forum in which people harmed by American companies’ activities and operations can raise grievances. As a member country adhering to the Organisation for Economic Co-operation and Development Guidelines for Multinational Enterprises (OECD Guidelines), the United States is mandated to have an NCP to further the effectiveness of the OECD Guidelines, including through handling complaints about alleged noncompliance of the Guidelines’ provisions and providing a platform for the mediation of disputes.

In 2017, the U.S. NCP undertook a peer review in which NCP peers from other countries came to Washington, D.C., spoke to various stakeholders, and evaluated how the U.S. NCP is working in practice. Accountability Counsel, ICAR, and ILRF provided written comments and issued a joint statement on the U.S. NCP for the peer review process, highlighting a number of key areas where it should be strengthened. Additionally, we attended in-person consultations with the peer review team in September 2017. As organizations committed to ensuring that corporations engage in responsible business conduct and provide remedy when harm occurs, we were looking forward to the findings and recommendations in the peer review report, with the hope that it would fully incorporate the feedback that we, and others, have been providing on the U.S. NCP for years.

The final peer review report helpfully includes a finding that “provisions on confidentiality and campaigning were seen by some stakeholders as a deterrent” to some potential submitters of complaints. As it stands, the U.S. NCP has some of the most restrictive confidentiality requirements among OECD members. Parties that submit a complaint are restricted from publishing or discussing its content. Furthermore, parties are encouraged to cease all campaigning, which can be an affected community’s or labor group’s only avenue for raising awareness and addressing the inherent power imbalances between them and the companies associated with the complaints. The peer review report calls on the U.S. NCP to ensure that its position on confidentiality is equitable and promotes transparency to the greatest extent possible. The U.S. NCP should fully implement this recommendation, taking concrete steps like allowing for the publishing of the complaints and publishing its own initial assessments of complaints on the U.S. NCP’s website, as is the case with some of its peers.

Despite the report’s recognition of issues around confidentiality and the need for the NCP’s improvement in other areas, we are disappointed that the vast majority of our observations and recommendations were not included in the peer review report. The report failed to merely mention our feedback around ensuring that complainants to the U.S. NCP, who are often vulnerable and marginalized, are equipped to engage in a mediation process with powerful corporate counterparts who are at the center of the complaint. For example, the U.S. NCP should provide financial support to obtain counselors or advisors, guaranteed translation services, and training on how to engage in dispute resolution processes. The report’s glaring omissions result in an unfortunate missed opportunity to address the U.S. NCP’s weaknesses and further the risk that it will continue to fall short in realizing its potential to be an effective avenue for victims of corporate abuse to resolve complaints.

When the report did include our feedback, it failed to incorporate it in a meaningful or substantial way that would effectively strengthen the U.S. NCP. For instance, we highlighted the U.S. NCP’s difficulty in getting companies to participate in the voluntary mediation process. To address this difficulty, we noted that the NCP needs to create incentives to bring companies to the negotiating table, including by issuing findings when companies breach the OECD Guidelines and by imposing consequences. Without the ability to determine whether a business has breached the OECD Guidelines, or the ability to impose sanctions for noncompliance, the U.S. NCP can be safely ignored by companies. Instead of specifically calling on the U.S. NCP to adopt these tools, the report only calls on the U.S. NCP to “consider additional efforts,” such as soliciting feedback from companies that have refused to engage in the mediation process and engaging in additional promotion around the benefits of mediation. While these efforts might be helpful, the report missed an opportunity to issue a strong recommendation to tackle some of the main barriers to company participation in the mediation processes. The overall lack of intensity in the report’s recommendations risks the report not resulting in meaningful change at the U.S. NCP.

The weakness of the report, while disappointing, is not particularly surprising, as research by Accountability Counsel, ICAR, and OECD Watch has highlighted weaknesses in several peer review processes, including the issuance of weak recommendations and a lack of robust monitoring on implementation.

Going forward, the U.S. NCP should fully implement the recommendations from the report as well as those submitted by civil society during the process. This is particularly important as the U.S. NCP’s peer review was a key component of the 2016 U.S National Action Plan on Responsible Business Conduct. The U.S. NCP should not be able to selectively implement its preferred recommendations, and the implementation should be transparent and participative. As the peer review report mentions, the U.S. NCP should work with civil society, including the civil society members on its Stakeholder Advisory Board, for guidance in implementing the recommendations. Additionally, the OECD should continue to improve the peer review process to ensure that it is robust and actually strengthens NCPs, thereby improving the global landscape for corporate accountability.

Accountability Counsel, ICAR, and ILRF will continue to advocate for the strengthening of the U.S. NCP such that it fulfills its potential in becoming a reliable and effective avenue for people who have been harmed by corporate human rights abuses to raise grievances and seek remedy.

Kindra Mohr, Policy Director, Accountability Counsel
Abby Henderson – Legal & Policy Fellow, International Corporate Accountability Roundtable (ICAR)
Eric Gottwald, Legal and Policy Director, International Labor Rights Forum (ILRF)
Ms. Mohr and Mr. Gottwald are members of the U.S. National Contact Point’s Stakeholder Advisory Board