BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

criteria for “functional equivalence”: operating under these four basic principles: visibility, accessibility, transparency, and accountability. 33 In addition, the Guidelines specify that NCPs should address specific instances in a manner that is impartial, predictable, equitable, and compatible with the Guidelines. 34 A survey conducted by the OECD Secretariat shows that adhering governments have taken different approaches when setting up their NCP in terms of structure and in terms of location. 35 The Canadian NCP, for instance, is described as a multi-ministerial body. 36 Other NCPs, such as Norwegian or Danish, are structured as independent agencies separated from governmental institutions. 37 In relation to the implementation of the Guidelines, the decision of the OECD Council on the Guidelines designates NCPs to handle enquiries and contribute to the resolution of issues that arise from them. 38 NPC provides the resolution of issues that arise from the alleged non-observance of the Guidelines as it may offer its “good offices” which basically means an alternative dispute settlement: dialogue or mediation and conciliation services. In the case of some NCPs, other role as fact finders, 39 in the sense of an independent process by which a neutral arbiter determines the facts relevant to controversy, has been added. 40 In this sense, the procedure represents a unique dispute settlement mechanism with the potential of a non-judicial grievance mechanism. Indeed, as is usual for alternative dispute resolution, parties to dispute cannot be compelled to participate in a conciliation or mediation process. Therefore, NCPs use the active engagement of parties to resolve disputing issues. 41 The disputes handled before this grievance mechanism are called specific instances. 42 Any interested party, usually individuals, communities or non-governmental organisations which have been adversely impacted by the activities of a business enterprise or who can demonstrate an ‘interest’, broadly defined, in the alleged violation, can file a specific instance, claiming that certain conduct by an MNE is not in accordance with the 34 OECD Guidelines for Multinational Enterprises (2011), Procedural Guidance, Section I.C. These four guiding principles for specific instances are further explained in paragraph 22 of the Commentary to the Procedural Guidance. 35 OECD. Implementing the OECD Guidelines for Multinational Enterprises: The National Contact Points from 2000 to 2015 . OECD Publishing, 2016, p. 40. 36 OECD. Annual Report on the OECD Guidelines for Multinational Enterprises 2015 . OECD Publishing, 2016, p. 129. 37 OECD. Implementing the OECD Guidelines for Multinational Enterprises: The National Contact Points from 2000 to 2015 . OECD Publishing, 2016, p. 69-70. 38 OECD Guidelines for Multinational Enterprises (2011), Decision of the Council on the OECD Guidelines for Multinational Enterprises, C(2000)96/FINAL, as amended, para I.1. 39 The author is, from sharing experience exercise, aware of a situation when one NCP even hired an on- the-ground investigator to make a determination about the actual events and veracity of the claims in a difficult case. The process was effective at documenting issues that needed addressing by the company, allowing for a very strong final statement. However, the process was very costly and hard to replicate. 40 DAVARNEJAD, p. 365. 41 Ibid, p. 364. 42 OECD Guidelines for Multinational Enterprises (2011), Procedural Guidance, C. Implementation in Specific Instances. 33 OECD Guidelines for Multinational Enterprises (2011), Procedural Guidance, Section I. The core criteria are further explained in para 9 of the Commentary to the Procedural Guidance.

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