One alternative to going to court is using international non-judicial corporate accountability and regulatory mechanisms. These refer to bodies that are:
Because of their international position, successful complaints to these mechanisms can damage the reputation of a business and lead to changes being made.
These may be appropriate if the options outlined in the guide are not available or effective. Also, the use of international mechanisms can support other efforts to secure accountability by creating pressure on businesses and national enforcement bodies.
Depending on the business and industry involved, there may be an international regulatory body that can investigate and hear complaints of corporate human rights abuses.
These mechanisms may be set up by trade and industry associations. These bodies have standards that the businesses in their industry are recommended to follow. The regulatory body may monitor whether businesses are in fact following these standards.
UNGPs Principle 30
“Industry, multi-stakeholder and other collaborative initiatives that are based on respect for human rights-related standards should ensure that effective grievance mechanisms are available.”
Here are some examples of independent and voluntary regulatory bodies with grievance or dispute resolution mechanisms:
Example: Complaints to the IFCCAO
To see an example of a complaint to the IFCCAO, see:
- http://www.cao-ombudsman.org/cases/document-links/documents/EcoOroComplaint_ENG.pdf (English); and
- http://www.cao-ombudsman.org/cases/document-links/documents/Guinea_CBG_Complaint_ENG.pdf (French)
If a business has impacted your human rights and think want to consider complaining to a regulatory body, check the following:
If the answer to all these questions is YES, this could be a good option for you as these complaints are usually cheaper than bringing a legal case.
The OCED Guidelines on Multinational Enterprises (the Guidelines) set out recommendations from governments to TNCs on responsible business conduct.
The Guidelines cover areas including disclosure, human rights, consumer interests, employment and industrial relations, environment, anti-corruption, competition and taxation.
Governments adhering to the Guidelines commit to establishing a National Contact Point (NCP).
If the business harming you or your community is incorporated or operating in a country adhering to the Guidelines, you may be able to file a complaint with the relevant NCP.
For more information, see the OECD Q&A on NCPs.
For the NCP to consider a complaint, it must be satisfied that there is an “investment nexus”.
OECD Watch (a global network of civil society organisations) has published a Guide on the OECD Guidelines which sets out information on the NCP complaint process.
The OECD Watch Guide sets out the three phases of the NCP complaint process:
Use this OECD Watch Template if you are considering making a written complaint to an NCP.
The NCP mechanism is not a judicial process. This means that:
Very few NCP cases have resulted in a remedy being awarded to victims. Also, the NCP is not obliged to monitor the implementation of its recommendations.
You may wish to look at undertaking concurrent strategies such as others outlined in this Guide, although it is important to note that some NCPs reject cases on the ground that there are parallel judicial proceedings.
BUT, the process is cheaper than bring legal cases and can attract a lot of attention to the issue affecting your community. This can result in the business changing its behaviour.
Example: Survival International vs. Vedanta Resources plc
In 2008, the NGO Survival International filed a complaint with the UK NCP against UK mining TNC Vedanta Resources alleging that the company’s mine on Niyam Dongar Mountain in Orissa, India, would harm the rights of the Dongria Kondh tribal people. The complaint also alleged that the Dongria Kondh were not consulted in the construction process.
The UK NCP concluded that Vedanta breached the OECD Guidelines. Vedanta refuted the NCP’s conclusions.
In March 2010, the UK NCP issued a follow-up statement urging Vedanta to work with the Dongria Kondh to explore alternatives to resettlement of the affected families. The NCP also recommended that the company include a human rights impact assessment in its project management process. Ultimately, the UK NCP could not compel Vedanta to comply with the procedures and recommendations.
NCPs are more effective in some countries than in others. Some NCPs are creative and can make recommendations that courts make be slower to order.
Example: Dutch NGOs vs. ING Bank
In 2017, Dutch NGOs filed a complaint against ING Bank for failing to sufficiently commit to the targets set in the Paris Climate Agreement. In its final statement, the Dutch NCP concluded that the OECD Guidelines for Multinational Enterprises demand that ING Bank sets concrete climate goals e.g. refraining from financing new coal-fired power plants.
The UN Working Group on the issue of human rights and transnational corporations and other business enterprises (the Working Group) is a group of independent experts who work to raise awareness about the UNGPs, support capacity-building on business and human rights, and visit countries to assess the business and human rights context.
Example: The Working Group in Honduras
In 2019, the Working Group undertook a 10-day visit to Honduras. As part of their recommendations, the Working Group called on the government to develop a law on free, prior and informed consent and consultation for Indigenous Peoples and other communities in line with international standards.
The Working Group receives and can respond to complaints by any person or group of persons who are the victim or have reliable knowledge of human rights abuses by TNCs.
The Working Group can than make communications to the relevant business and issue public statements (as ‘urgent appeals’ or ‘allegation letters’) about the situation. This can put pressure on the business to change its behaviour.
If you are thinking about making a complaint to the Working Group, you can find information about the procedure on the OHCHR site.