Reflection on Expert Seminar by Sanne Taekema

How Effective Are the OECD National Contact Points? Lessons from the Bralima Case

INFAR/Asser Event 3 April 2019

In the context of business and human rights, the OECD National Contact Points (NCPs) are interesting institutions. Their brief is double: on the one hand, to promote and further the use of the OECD Guidelines on Multinational Enterprises, on the other hand, offering their ‘good offices’ through which remedy may be an outcome for persons adversely affected by multinationals’ activities. The expert seminar focussed on access to remedy, linking it to the UN Guiding Principles on Business and Human rights. However, throughout the day it was clear that the two aims of the NCPs, the general strategies and the specific handling of cases, influence each other.

The expert seminar had two parts: first, an in-depth discussion of the Bralima case that was handled by the Dutch NCP with representatives of all stakeholders in that case offering their views, and second, a broader discussion on the effectiveness of NCPs in providing remedies. The organizers wanted to dissect the presentation of this case as a success story. The narrative that Bralima is a success story was brought out by the stories too, so I was fascinated by how this was achieved. Hearing the inside stories of the Bralima case left me as a listener feeling ambivalent. However, I also had the impression that the success was due to a fortuitous combination of circumstances and people. This left me with the feeling that a mediation process like this one and an effective use of the ‘good offices’ of the NCP are dependent on the parties involved. It depends on the claimants: only if there are individuals willing to devote their energy to pursuing a claim, often at great personal risk, there is a start. It depends on the company: only if the company is truly willing to cooperate and invest in the process and outcome, there is a chance of a dialogue. It depend on the NCP: only if the NCP is truly interested and makes an effort to really support the process, there is a chance of a solution. This means that the process is highly vulnerable because it is dependent on the people involved. Successes are possible, but there are so many opportunities to undermine the process.

The second part of the seminar raised an interesting rule of law problem: should cases before NCPs be seen as legal cases or not? In favour of a legal perspective, one may point to NCP procedures in various countries that lack good legal assessment of evidence and human rights norms and that fall short of providing meaningful access to justice. Looking at NCP case handling as quasi-judicial brings out the flaws. However, should we see them as legal procedures? One of the assets of NCP procedures seems to be the ability to choose an approach that fits the case. Such a functional approach demands flexibility of procedures as well. As long as the underlying values adopted by the NCP are respected, it may be better to be less strict about evidence and interpretation than a court would be. Interestingly, the values they flag strongly echo the rule of law: visibility, accessibility, transparency, accountability, impartiality, predictability, equity and conformity of specific decisions with the norms. It is therefore not surprising that lawyers interpret the work of the NCP in specific cases as legal, all the more so because the NCP procedure is used as a fall-back option if a regular court decision is unattainable. However, I think it is questionable whether looking at the procedures as quasi-judicial is a good thing. The normative background values of the rule of law may not be served by such an approach: access, accountability, equity may all be better served by a less formalistic approach.

The impartiality of the NCPs is an issue that demands further thought, especially because it is so strongly linked to independence. It seemed to me that an independent position of the NCP in relation to the government is crucial, and unfortunately, only a few NCPs have such a position. Even more unfortunately, NCPs depend on government funding. One thing the Bralima case brought out was the success of the process was also due to the facilitation by the NCP in the form of covering costs for claimants. If governments keep their NCPs on a tight budget, as most seem to do, they can easily frustrate the NCPs’ work. Here again, it seems that good will, now of government officials involved, is required to make NCPs effective. There are wonderful possibilities here, but NCPs need ethical leadership and financial backing to realize them.