BUSINESS AND HUMAN RIGHTS / Šturma, Mozetic (eds)

Guidelines. It often involves highly complex corporate responsibility questions and covers global supply chains in their entire length. Once a specific instance has been submitted, there are potentially four following phases to follow. The first step is to determine whether the raised issues merit further examination and meet the criteria as set out in the procedural guidance. 43 If the criteria set out in the procedural guidance are met, the NCP offers good offices to examine the issues raised. 44 At this stage the NCP tries to bring the complainants and company together to resolve the case. Since the good offices proposed by NCPs is a voluntary and consensual procedure, the unwillingness of one or both parties to come to the table can put the NCPs’ capacity to act as a mediator and to contribute to the resolution of issues at risk. Respecting the core criteria of functional equivalence are important to establish confidence of the parties in the procedures and encourage their participation. Regardless of whether the parties have reached an agreement, the NCP issues a final statement upon concluding specific instance processes. 45 A final statement may include specific recommendations. In some cases, NCPs also make determinations, evaluating whether a company observed the Guidelines or not. An unnecessary part is the follow up when the NCP monitors whether its recommendations were followed and parties act in compliance with an agreement. Specific instances are not legal cases and NCPs are not judicial bodies. As such, NCPs cannot impose sanctions nor provide a direct remedy. At the end of the process, the NCP publishes a statement regarding the issues raised and their assessment. NCPs thus cannot impose sanctions, directly provide compensation, nor can they compel parties to participate in the resolution of issues including but not limited to a mediation process. 46 It thus remains a question whether NCPs provide access to an effective remedy. Nevertheless, they can serve “the court of public opinion” providing naming and shaming possibilities. 47 NCPs thus can produce important consequences, as the two examples analysed below demonstrate. A further advantage of mediation is its use as a “relatively quicker alternative for the resolution of certain disputes that either do not require, or for which the complainants prefer not to pursue, judicial or quasi-judicial routes.” 48 Since 2000, NCPs handled more than 400 cases relating to MNEs operation in over 100 countries and territories. The majority of the cases dealt with employment and workers issues (54%), followed by human rights (28%) and environmental issues (20%). Historically, the most frequent users were trade unions, with workplace complains prevailing. The introduction of Chapter IV into the Guidelines has led to the growing number of human rights cases because “under the Guidelines they now include 43 Ibid, para 1. 44 Ibid, para 2. 45 Ibid, para. 3. 46 OECD. Implementing the OECD Guidelines for Multinational Enterprises: The National Contact Points from 2000 to 2015 . OECD Publishing, 2016, p. 5. 47 VAN T FOORT, p. 205. 48 RUGGIE, NELSON, p. 186.

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