Canada's National Contact Point (NCP)

The Role of the NCP in Helping to Resolve Issues

Introduction

At the June 2000 OECD Ministerial Council Meeting, all OECD members, including Canada, adopted the "Decision of the Council on the Guidelines for Multinational Enterprises" (the Decision). The Decision outlines the obligations of governments of adhering countries in implementing the Guidelines. This paper outlines the approach Canada's National Contact Point takes in helping to resolve issues that arise in relation to the Guidelines.

Background

The OECD Guidelines for Multinational Enterprises (the Guidelines) are recommendations addressed by governments to multinational enterprises. They set out voluntary principles and standards of behaviour for good business conduct.

Countries adhering to the Guidelines are instructed in the Decision to establish a National Contact Point (NCP):

Adhering countries shall set up National Contact Points for undertaking promotional activities, handling inquiries and for discussions with the parties concerned on all matters covered by the Guidelines so that they can contribute to the solution of problems which may arise in this connection, taking due account the Procedures Guide for Canada’s NCP for the OECD Guidelines for MNEs.

That the NCPs "contribute to the solution of problems" is binding on governments. This is not new, as it is a restatement of an obligation first adopted by governments in an OECD Decision in 1984. Reference to the "procedural guidance" is new and, while this latter document is not legally binding, OECD Ministers agreed that NCPs would be guided by it in the implementation of the Guidelines. Section C of the Procedural Guidance - Implementation in Specific Instances - deals with the resolution of problems:

C. Implementation in Specific Instances

The NCP will contribute to the resolution of issues that arise relating to implementation of the Guidelines in specific instances. The NCP will offer a forum for discussion and assist the business community, employee organisations and other parties concerned to deal with the issues raised in an efficient and timely manner and in accordance with applicable law. In providing this assistance, the NCP will:

1. Make an initial assessment of whether the issues raised merit further examination and respond to the party or parties raising them.
2. Where the issues raised merit further examination, offer good offices to help the parties involved to resolve the issues. For this purpose, the NCP will consult with these parties and where relevant:
   1. Seek advice from relevant authorities, and/or representatives of the business community, employee organisations, other non-governmental organisations, and relevant experts;
   2. Consult the National Contact Point in the other country or countries concerned;
   3. Seek the guidance of the CIME if it has doubt about the interpretation of the Guidelines in particular circumstances;
   4. Offer, and with the agreement of the parties involved, facilitate access to consensual and non-adversarial means, such as conciliation or mediation, to assist in dealing with the issues.
3. If the parties involved do not reach agreement on the issues raised, issue a statement, and make recommendations as appropriate, on the implementation of the Guidelines.
4. (a) In order to facilitate resolution of the issues raised, take appropriate steps to protect sensitive business and other information. While the procedures under paragraph 2 are underway, confidentiality of the proceedings will be maintained. At the conclusion of the procedures, if the parties involved have not agreed on a resolution of the issues raised, they are free to communicate about and discuss these issues. However, information and views provided during the proceedings by another party involved will remain confidential, unless that other party agrees to their disclosure.
   
   (b) After consultation with the parties involved, make publicly available the results of these procedures unless preserving confidentiality would be in the best interests of effective implementation of the Guidelines.
5. If issues arise in non-adhering countries, take steps to develop an understanding of the issues involved, and follow these procedures where relevant and practicable.

The resolution of issues in adhering countries will be facilitated by the host country NCP. In situations where the host country is not a signatory to the Guidelines and, hence, is not required to have a NCP, the home country NCP may have a role to play in helping to resolve issues.

Helping to Resolve Issues Arising in Adhering Countries

When a case is brought to the Canadian NCP concerning the operations of a MNE in Canada, the NCP will need to assess whether the issue merits further examination, i.e., whether the issue is bona fide and relevant to the implementation of the Guidelines. In this context, the NCP will take into account:

• the identity of the party filing the complaint and its interest in the matter;
• whether the issue is material and substantiated;
• the relevance of applicable law and procedures;
• how similar issues have been, or are being, treated in other domestic or international proceedings;
• whether the consideration of the specific issue would contribute to the purposes and effectiveness of the Guidelines.

Following an initial assessment, the NCP will respond to the party that raised the issue. If the issue is deemed to merit further consideration, the NCP will discuss the issue further with the parties involved and offer "good offices" in an effort to contribute informally to the resolution of the issue. The aim of these activities is to reach an agreement with all parties on the issue raised and for the enterprise to take appropriate action to resolve it. The offer of good offices could include facilitating access to consensual and non-adversarial procedures such as conciliation or other alternative dispute resolution proceedings. These procedures will only be advanced upon agreement of the parties concerned.

In assessing a case and in facilitating a positive outcome, the NCP is advised in the Procedural Guidance to consider the following activities:

• seek information and advice from relevant authorities, stakeholder representatives and experts;
• consult the NCP in the other country or countries involved;
• seek guidance of the CIME if there is doubt about the interpretation of the Guidelines;
• with agreement of the parties involved, facilitate access to a conciliation process.

If resolution of the issue is unattainable, the NCP will make a statement, and recommendations as appropriate, on the implementation of the Guidelines.

Helping to Resolve Issues Arising in Non-Adhering Countries

If issues arise in non-adhering countries, the NCP will take steps to develop an understanding of the issues involved, and follow the same procedures as for an issue in an adhering country, where relevant and practicable.

The Guidelines recognize that, in the absence of a host-country NCP, finding solutions to problems may be more difficult. The home country NCP may have to become involved in obtaining information to determine the validity of a case and in facilitating the necessary dialogue amongst the parties involved. This would have to be done respectful of the sovereignty concerns of the host country. Fact finding activities could include contacting officials of the MNE in the home country and, if appropriate, government officials in the host country.

Balancing Transparency and Confidentiality

The Guidelines recognize the importance of NCPs finding the right balance between the principles of transparency and confidentiality while fulfilling their obligation to help resolve issues. Balancing these principles will build confidence in the Guidelines procedures and promote their effective implementation. Therefore, while the NCP is expected to carry out its dealings with the public in a transparent manner, the Guidelines recognize that under certain circumstances confidentiality will be important (e.g. to protect sensitive business information or the identity of individuals). Moreover, the Procedural Guidance advises that the procedures to resolve an issue will be more effective if, while they are underway, confidentiality of the proceedings is maintained. After consulting with the parties involved, Canada's NCP will make publically available the results of the procedures unless preserving confidentiality is in the best interests of the effective implementation of the Guidelines. The NCP's handling of confidentiality and transparency will be in accordance with Canada's Access to Information Act.