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Resolving Complaints About Irresponsible Corporations

by Larry Susskind
December 2009

From Larry Susskind's blog on the Consensus Building Approach

Larry Susskind
Corporations are supposed to pay attention to environmental, health, safety, labor, tax, consumer protection, information disclosure, and human rights laws wherever they set up shop. But, we've all seen and heard stories about multinationals guilty of violations in far-away places. They have been charged with allowing unsafe working conditions, blocking legitimate unionization efforts; ignoring environmental and health standards, bribing officials, and turning a blind eye to human rights violations. Developing countries are often ambivalent about holding violators to account: they can't afford to lose the investments and the jobs, and they often lack enforcement muscle even if they want to act.

The 30 member nations in the Organization for Economic Cooperation and Development (OECD) -- mostly developed countries -- have agreed to press multinationals based within their borders to conduct themselves responsibly and abide by applicable laws wherever their far-flung business interests may take them. There are lots of voluntary guidelines that seek to impose similar norms of socially-responsible corporate behavior, but the OECD Guidelines for Multinational Enterprises cover 85% of all foreign direct investment in the world. They also put countries in a quasi-enforcement role which most voluntary codes of ethics don't do.

Every OECD country is required to appoint a National Contact Point (NCP). All complaints about foreign-controlled corporations are channeled through the (home country) NCPs, regardless of where an alleged infraction take place. So, for example, if an environmental group in the Philippines thinks a Dutch-based multinational is operating inappropriately in the Philippines, it can file a complaint with the NCP in the Netherlands. While the NGO can also bring a lawsuit against the Dutch subsidiary in the Philippines, getting the Dutch NCP involved brings an entirely different level of international attention to the complaint. If after an investigation, the NCP in the Netherlands is unable to get the parties to settle their differences, it is empowered to issue a statement of findings -- either giving the company a "clean bill of health" or stipulating (1) that the guidelines have been breached and (2) how the company's conduct must change in the future. Neither the NCP or the OECD can shut a company down or fine them for breaking the rules. However, the NCP might be in a position in some countries to punish a non-complier by forbidding them to do business with their home country government. Any company named as a non-complier by an NCP will take a serious reputational hit (which could affect its market value) in national and international circles.

While the OECD guidelines have been in effect for a number of years, only a few hundred notifications have been sent to NCPs worldwide. Recently, though, the Dutch and Canadian NCPs (in anticipation of an upcoming OECD review of the guidelines) asked whether those of us who help to mediate CSR disputes would offer suggestions for improving the "system." On November 31st, the Dutch and Canadian NCPs met with a group of experienced international dispute resolvers at Harvard Law School to share ideas.

We heard about a number of cases. The Dutch NCP tries hard to resolve complaints behind the scenes without ever having to issue formal statements, but this is not always possible. When they try to mediate disputes, they encounter three sets of obstacles or concerns. The first relates to the roles and responsibility of NCPs. Exactly what authority do they have? The Dutch NCP is independent. While it is appointed by the Dutch government, it is made up of four individuals who represent labor unions, corporations, environmental groups and academia. All other NCPs are government officials. When they receive a notification, they must investigate. But, its hard to gather first-hand evidence in another part of the world with a small staff and a limited budget. Should they proceed if charges are pending in court or being pursued in parallel in another country? Different NCPs think differently about this. How should they decide which standards of performance to use in evaluating specific corporate actions? Does it matter whether the complainant is truly representative of the people or group it alleges to represent? What if the corporate subsidiary being charged is truly independent, and the multinational parent company has little or no control over its behavior?

A second set of obstacles or issues revolves around the rights of companies against whom complaints have been lodged as well as the rights of individuals or groups who file notices of complaint. Should companies that are charged with violations have a right to confront the evidence against them and to cross-examine their accusers? This would pit small NGOs against some of the worlds' richest companies. But, if unsubstantiated charges are publicized and used to blemish the reputation of a company, does an NCP have a responsibility to protect the company's good name? And, if someone files a complaint, is it the responsibility of the NCP to protect them from any kind of retaliation? The current OECD guidelines are not as explicit as they might be; on the other hand, maybe its better to let each NCP proceed in whatever way makes the most sense in its legal and cultural context. Does fairness require that NCPs all over the world keep a record of their findings and decisions, that repeat (global) offenders be held to higher standards or that similar charges be treated in the same way every where?

The third set of questions focuses on the roles and responsibilities of intermediaries trying to resolve CSR disputes. If the NCP promises confidentiality to get people to talk freely, can it then use what it learns if a voluntary settlement is not reached and it has to issue a statement of findings? What ethical code should govern NCP settlement efforts? Should NCPs try to mediate disputes themselves; or, as is the case in the United Kingdom, should they hire professional mediators who are not government employees? Is it really possible to create a wall between one part of an NCP that is trying to settle a dispute and another that has to pursue its investigatory obligations and issue a formal statement of findings?

As more groups around the world find out about the OECD system, and the number of notifications increases, it will be important to have effective dispute resolution procedures in place. You should contact the NCP in your country. Offer comments and suggestions (by January 25, 2010) that can be incorporated into the upcoming review of the OECD guidelines. You can view the guidelines at www.oecd.org. You also might want to read the report prepared by OECD Watch entitled Five Years On: A Review of the OECD Guidelines and National Contact Points, 2005 available at http://foci.org/en/resources/publications/economic-justice-resisting-neoliberalism/2000-2007/pagesfiveyears.pdf.view.

Biography


Lawrence Susskind was born in New York City in 1947. He graduated from Columbia University in 1968 with a B.A. in English Literature and Sociology. He received his Masters of City Planning from MIT in 1970 and his Ph.D. in Urban Planning from MIT in 1973. 

Professor Susskind joined the faculty of the MIT Department of Urban Studies and Planningin 1971. He served first as Associate Head and then as Head of that Department from 1974 through 1982. He was appointed full professor in 1986 and Ford Professor of Urban & Environmental Planning in 1995. As head of the Environmental Policy Group in the School of Architecture and Planning at MIT, he currently teaches four courses (Negotiation and Dispute Resolution in the Public Sector (11.255), International Environmental Negotiation (11.364) taught jointly with the Fletcher School of Law and Diplomacy at Tufts University, Multi-party Negotiation (11.257) taught jointly with Harvard Law School, and Use of Joint Fact-Finding in Science-Intensive Policy Disputes (11.941)), oversees a research budget of approximately $250,000 annually, and supervises more than a dozen masters and doctoral dissertations a year.

From 1982-1985, Professor Susskind served as the first Executive Director of the Program on Negotiation at Harvard Law School-- an inter-university consortium for the improvement of theory and practice in the field of dispute resolution. He currently holds an appointment at Harvard as Vice-Chair for Instruction, and Director of the Public Disputes Program at Harvard Law School. Professor Susskind is responsible for an extensive series of action-research projects, the training of senior executives, and serves on the Editorial Board of Negotiation Journal and as head of the Clearinghouse at the Program on Negotiation. He has developed more than fifty simulations (distributed by the Clearinghouse at the Program on Negotiation) that are used to teach negotiation, dispute resolution, and consensus building throughout the world. 

Professor Susskind is one of the country's most experienced public and environmental dispute mediators and a leading figure in the dispute resolution field. He has mediated more than fifty complex disputes related to the siting of controversial facilities, the setting of public health and safety standards, the formulation and implementation of development plans and projects, and conflicts among racial and ethnic groups -- serving on occasion as a special court-appointed master.

 



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Website: www.lawrencesusskind.com

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