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How Can I Make a Complaint to International Corporate Accountability Mechanisms?

One alternative to going to court is using international non-judicial corporate accountability and regulatory mechanisms. These refer to bodies that are:

  • International – they can hear cases from around the world;
  • Non-judicial – the decisions are not legally binding; and
  • Corporate – they are concerned with “corporate accountability”. They are designed to hear complaints against businesses, not governments or other persons.

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.


If you are interested in making a complaint to an international non-judicial accountability mechanism, consider the following questions:


Action4Justice - International Corporate Accountability Mechanism Checklist
1

International Regulatory 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:

  • Is there is regulatory body that covers the area the business works in (e.g. palm oil)?
  • Has the business signed up to this regulatory body?
  • Does the regulatory body have a complaints mechanism?
  • Has this mechanisms been effective in the past?

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.

2

OECD National Contact Points

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).

  • NCPs provide for dispute resolution through a mediation process where “any interested party” (an individual, community or other stakeholder group) can file a case (a “specific instance”) against a TNC which operates in an adhering country relating to a breach of the Guidelines.

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.

  • As of August 2019, 48 countries have NCPs. Their contact details are available on this link

For more information, see the OECD Q&A on NCPs.


(a) What Type of Complaint Can Be Filed with an NCP?


For the NCP to consider a complaint, it must be satisfied that there is an “investment nexus”.

  • For supply chains, this means that the company named in the complaint must have an investment-like relationship with its supplier.
  • The existence of the investment nexus is decided by the NCP on a case-by-case basis.

(b) How Is a Complaint Filed with an NCP?


Key Resource: OECD Watch Guide on NCP Complaints

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:

  • Phase 1 (initial assessment): a complaint is submitted to an NCP.
  • Phase 2 (mediation): the NCP decides the case merits further examination.
  • Phase 3 (final statement): the NCP issues a final statement about the complaint and mediation process. It should outline the alleged breaches and how the NCP dealt with the case. Final statements may include recommendations on the implementation of the Guidelines, as well as the NCP’s determination as to whether a breach of the Guidelines has occurred.

Use this OECD Watch Template if you are considering making a written complaint to an NCP.


(c) What Is the Likely Outcome of the NCP Procedure?


The NCP mechanism is not a judicial process. This means that:

  • The final statement delivered is non-binding on the TNC subject to the complaint.
  • The NCP cannot award financial compensation to complainants or impose pecuniary sanctions on companies.

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.

3

UN Working Group on Business and Human Rights

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.

Key Resource: The OHCHR Guide on Submitting Complaints to the Working Group

If you are thinking about making a complaint to the Working Group, you can find information about the procedure on the OHCHR site.

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