Einde inhoudsopgave
Corporate Social Responsibility (IVOR nr. 77) 2010/10.6.1
10.6.1 First mediatory attempt: the Dutch NCP
Mr. T.E. Lambooy, datum 17-11-2010
- Datum
17-11-2010
- Auteur
Mr. T.E. Lambooy
- JCDI
JCDI:ADS370653:1
- Vakgebied(en)
Ondernemingsrecht (V)
Voetnoten
Voetnoten
Most NCPs are staffed by civil servants from, and usually have their office at, the Ministries of either Foreign Affairs, Economic Affairs or Trade. Since July 2007, the Dutch NCP consists of a committee of four independent members appointed on a personal basis. Each has a background that represents one of the stakeholder groups in the CSR discussion. The NCP is supported by four advisory members from the Ministries of Economic Affairs, Foreign Affairs, Social Affairs and Employment, and Housing, Spatial Planning and the Environment respectively, and a secretariat consisting of three full-time employees. See also Resolution EP (EP) (INI/2006/2133), March 2007; the EP 'calls on the (EU) Commission and the Member States to improve the functioning of national contact points (NCPs) in particular in dealing with specific instances raised concerning alleged violations throughout operations and supply chains (emphasis added) of European companies worldwide' (§ 47) and ' calls for a broad interpretation of the definition of investment in the application of the OECD Guidelines to ensure supply-chain issues are covered under (the) implementation procedures' (§ 65). Furthermore, see Report of Professor John Ruggie, Special Representative of the UN Secretary-General on the issue of human rights and transnational corporations and other business enterprises, Promotion and Protection of All Human Rights, Civil, Political, Economic, Social and Cultural Rights, Including the Right to Development, 7 April 2008. This report contains a basic framework for addressing business' responsibility towards human rights issues and was warmly welcomed in the UN Human Rights Council on 8 April 2008 as well as by the business society and the labour unions. It attaches great value to grievance mechanisms for victims and stakeholders of multinationals' practices. Special mention is made of the British and Dutch NCP because of their far more independent structure. Professor Ruggie also praised the Dutch NCP as 'the gold standard for NCPs' during a special seminar on Business and Human Rights on 1 December 2008, organised by the Dutch Ministry of Foreign Affairs. Currently, the meetings of the Investment Committee, in which inter alia the OECD Guidelines are discussed, appear to have a quadripartite structure: member state governments, business society, labour unions, and NGOs (jointly organised in OECD Watch; see: www.oecdwatch.org, accessed on 1 May 2010.
Regarding this complaint, the author could not trace any public information.
Final NCP Statement Concerning a Specific Instance notified by CCC/ICN against G-Star, 18 March 2008, p.1; (in Dutch and English), www.oesorichtlijnen.nl, accessed on 12 July 2010.
Ibid.,p.2.
OECD MNE Guidelines, Part III. Commentaries, Commentary on the Implementation Procedures of the OECD Guidelines for Multinational Enterprises, §16-17, p. 61; at: www. oecd.org/dataoecd/56/36/1922428.pdf, accessed on 12 July 2009.
This objection though is not based on correct assumptions; an auditing firm, like SGS, can audit a company on its SA 8000 conformity at one specific moment. When all the requirements are met, the company will obtain SA 8000 certification. If, however, the circumstances change after the certification, the auditing firm is not in a position to withdraw the certification. If it would, it would endanger its neutral position as an auditing firm. Therefore, companies with SA 8000 certification are audited regularly to make sure that the labour conditions are still in conformity with the SA 8000 requirements.
After their dialogue with G-Star ended in a stalemate CCC/ICN decided to file a complaint with the Dutch NCP (NCP) against G-Star for violating the OECD MNE Guidelines.1 During the same period, CCC Italy filed a complaint with the Italian NCP against FFI/JKPL's Italian affiliate.2
Box 10.4 OECD MNE Guidelines
The OECD MNE Guidelines are a set of recommendations of the 30 OECD countries' governments, and currently also 11 non-OECD countries, so-called adhering countries. The recommendations address multinational companies, both large companies as well as small and medium sized enterprises from OECD countries and the adhering countries. They offer a basic outline for corporate conduct vis-à-vis social, environmental and other aspects of doing business, such as human rights, corruption and consumer interests. The guidelines were negotiated in a multipartite way, meaning that they were drawn up by the OECD member states governments in cooperation with business and civil society, trade unions, and non OECD-member states.
Every OECD country or adhering country is obliged to establish a socalled National Contact Point for the OECD Guidelines (NCP). The NCPs are given the task of promoting the Guidelines, and of dealing with complaints ('specific instances') of alleged violations. This grievance mechanism regards investment-related issues, thus ruling out complaints on trade-related issues. The grievance must relate to an enterprise registered in an OECD member state or to an ' investment-like' business affiliate of such enterprise. In this unique procedure, the NCPs can offer mediation services between the parties in order to contribute to an amicable resolution of a conflict. When no agreement is reached, the NCP can issue a public statement on the issues at hand. See for more information www.oecd.org or www.oesorichtlijnen.nl (website Netherlands NCP).
In the complaint of October 2006, CCC/ICN alleged that G-Star had failed to
use its influence towards FFI/JKPL to remediate the allegedly poor labour conditions. Strictly speaking, FFI/JKPL was not an investment of G-Star as the two companies were trading partners. Nevertheless, the NCP accepted the grievance, which was a novelty from an NCP perspective. The NCP decided that the G-Star-FFI/JKPL relationship was sufficiently 'investment-like' since G-Star was a major buyer and had been cooperating closely with FFI/JKPL in designing fabrics and jeans models for more than seven years and all products were provided with G-Star labels.3 FFI/JKPL thus fell within G-Star's 'sphere of influence' , hence G-Star bore a certain extent of responsibility towards the situation at FFI/JKPL. The NCP was requested to consider whether G-Star had sufficiently used its leverage with FFI/JKPL in order to foster a local stakeholder dialogue in Bangalore.4 Although the investment nexus imposes a ' duty of care' on an accused enterprise for possible issues at the foreign company, it does not make the latter a party to the procedure. Also, since India is not an adhering country to the OECD MNE Guidelines, these guidelines do not apply directly to FFI/JKPL. Consequently, there was no way for the NCP to directly engage in a dialogue with FFI/JKPL. Nevertheless, the NCP sought to mediate between the parties.5 However, there was a lack of trust between G-Star and CCC/ICN. G-Star indicated that it did not expect any positive outcome to an NCP-led dialogue, since CCC/ICN refused to cease its public campaign against G-Star during the mediation process. Consequently, the NCP first held separate meetings with each of the two parties. In June 2007, a first joint meeting was scheduled to discuss various solutions. G-Star announced that FFI/JKPL would be audited once again in the early autumn by SGS/ASK (section 10.2). CCC/ICN stressed that it deemed SGS a controversial firm for not having withdrawn FFI/JKPL's SA 8000 certification despite the fact that FFI/JKPL had commenced litigation against its criticasters.6 CCC/ICN also pointed to the SAI Statement (section 10.5). The NCP considered the outcome of the audit to be of importance for judging G-Star's local involvement before initiating further steps.
However, when G-Star presented the audit results to the NCP and CCC/ICN in October/November 2007, the whole situation had become out of hand and had turned into an international conflict between G-Star, FFI/JKPL, CCC/ICN, the Indian Organisations, and - to a lesser extent - the governments of India and the Netherlands. Despite the positive outcome of the audit, G-Star announced the termination of its business relationship with FFI/JKPL on 6 December 2007. After the resolution of the conflict in 2008 by the Dutch Minister of State Ruud Lubbers (section 10.7), CCC/ICN withdrew its complaint at the NCP. Consequently, the NCP had to terminate the procedure with a formal rather than a substantive final statement. Similarly, CCC Italy also withdrew its complaint at the Italian NCP.