Accountabi lity Counsel

450 Mission Street, Suite 500, San Francisco, California, 94105, United States of America

Phone: 1.415.412.6704 Fax: 1.415.520.0140

www.accountabilitycounsel.org

October 12, 2010

Via Electronic Mail

U.S. OECD National Contact Point Review

U.S. Department of State

Email: input@state.gov

Re: Accountability Counsel Comments on the U.S. OECD National Contact Point

Dear U.S. OECD National Contact Point Review Staff: 

Accountability Counsel is pleased to submit the following comments concerning the 

Administration’s review of the U.S. National Contact Point (“NCP”) for the OECD Guidelines 

for Multinational Enterprises (“Guidelines”). 

Accountability Counsel is a San Francisco-based organization that works around the 

world to support communities using accountability mechanisms to uphold environmental and 

human rights. Among our clients are oil-affected indigenous villages in the Peruvian Amazon, 

small farmers in Papua New Guinea, and dam-affected communities in Mexico. We also work at 

the policy level to ensure that accountability systems are robust, fair and effective. We therefore 

take great interest in the Department of State’s review of the U.S. NCP, because it has the 

potential to assist in the resolution of disputes between communities we represent that are in 

need of such a mechanism, and U.S.-based multinational enterprises (“MNEs”). 

For the past year, Accountability Counsel has been in close communication with the U.S. 

NCP, urging the State Department to make current U.S. NCP procedures public (which was done 

in April 2010), and requesting the review process that is now underway. We thank the 

Department of State for this opportunity to comment, and hope that this is only the beginning of 

engagement with civil society on the design and operation of the U.S. NCP. 

We provide general comments below, followed by more specific suggestions aimed to 

help the U.S. NCP fulfill its mandate under the Guidelines,1 while taking advantage of advances 

in accountability mechanism design. These comments are based on our extensive experience 

regarding the design, implementation and practice of international financial institution (“IFI”) 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

1

 Organization for Economic Cooperation and Development, OECD Guidelines for Multinational Enterprises 34 

(2008), available at http://www.oecd.org/dataoecd/56/36/1922428.pdf (“The NCP will offer a forum for discussion 

and assist . . . [concerned parties] deal with the issues raised in an efficient and timely manner and in accordance 

with applicable law.”).
2

accountability mechanisms,2 as well as a thorough review of the NCPs in other OECD countries. 

To provide support for our own suggestions, wherever possible, we have referenced similar 

features within other successful accountability mechanisms, including other NCPs. 

I. General Comments

Accountability mechanisms are essential to the credibility and legitimacy of rules in the 

international system. Accordingly, the OECD Guidelines would have little worth without the 

accountability mechanisms established through NCPs. For people harmed by MNE operations, 

access to NCPs to resolve disputes is particularly important when they serve as the only available

complaint system due to weak, corrupt, inaccessible, or poorly functioning local or national

judicial systems. Additionally, even with access to an effective judicial system, use of NCP 

dispute resolution services can be a cost-efficient and timely alternative to litigation. These are 

among the reasons why NCPs are important avenues for “access to effective remedies”3 when 

MNE activities violate the Guidelines and impact peoples’ rights. In addition, because many of 

the Guidelines implicate human rights, NCPs can and should be effective grievance mechanisms

for redress of the human rights dimensions of the Guidelines.

As we have seen in countries where NCPs are well structured, they can be useful tools for 

affected groups and MNEs to resolve their disputes.4 In the United States, however, the current 

NCP has a poor history, having never had a role in successful resolution of a dispute pertaining 

to the Guidelines. Despite the U.S. commitment to implementation of the Guidelines dating 

back to their establishment in 1976, and a recommitment during their revision in 2000,5 the U.S. 

NCP has failed at its objectives: to promote the Guidelines, and to assist in resolution of disputes 

pertaining to the Guidelines. Even within the United States, the mechanism is little known, and 

not widely used. Furthermore, complaints that have been submitted are not fully addressed and 

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2

 Accountability Counsel’s Executive Director, Natalie Bridgeman Fields, was the consultant hired by the EBRD to 

review and revise their accountability mechanism in 2008-2009, and has been involved over the last decade with the 

design, implementation and/or functioning of each of the IFI accountability mechanisms as a consultant, lawyer for 

complainants and policy advocate.

3 See John Ruggie, Special Representative of the Secretary-General on the Issue of Human Rights and Transnational 

Corporations and Other Business Enterprises, Business and Human Rights: Further Steps Toward the 

Operationalization of the “Protect, Respect and Remedy” Framework 18 (2010), available at http://www.reportsand-materials.org/Ruggie-report-2010.pdf. 

4 See e.g., United Kingdom NCP Cases, Department for Business Innovation and Skills, 

http://www.bis.gov.uk/policies/business-sectors/low-carbon-business-opportunities/sustainabledevelopment/corporate-responsibility/uk-ncp-oecd-guidelines/cases (Nov. 2008) (facilitating a successful agreement 

between G4S securities group and UNI in which the parties agreed to specific commitments including a 

commitment to honor national law and to respect core ILO rights such as the freedom of association and collective 

bargaining); United Kingdom NCP Cases, Department for Business Innovation and Skills, 

http://www.bis.gov.uk/policies/business-sectors/low-carbon-business-opportunities/sustainabledevelopment/corporate-responsibility/uk-ncp-oecd-guidelines/cases (Nov. 2009) (achieving a settlement after a long 

conflict between Unilever and the IUF over the rights of precarious workers at the company's Lipton/Brooke Bond 

tea factory in Khanewal, Pakistan). 

5 U.S. Department of State, OECD Guidelines for Multinational Enterprises: What are They?, 

http://www.state.gov/e/eeb/ifd/oia/usncp/140610.htm.
3

there has been no transparency of process. This failure is a loss for all potential users of this 

mechanism, including communities where MNEs operate, labor unions, civil society groups, and

MNEs themselves. 

We appreciate the first steps that the State Department has taken to address these

deficiencies, starting with the April 2010 publication of a brochure summarizing the steps 

required for filing a complaint, and procedure the U.S. NCP follows thereafter.

6 We note, 

however, that the U.S. NCP’s newly public procedures remain vague and lack necessary 

guarantees of visibility, accessibility, transparency and accountability that the OECD Guidelines 

recognize as “core criteria.”7 Our detailed recommendations below are summarized as follows: 

• Regarding visibility and accessibility, the U.S. NCP should widely distribute 

rules of procedure and an easy-to-understand guide to filing complaints regarding 

specific instances. The information should be translated into major world 

languages. The U.S. NCP should have no unnecessary barriers to entry and 

should accept complaints in an accessible manner. The U.S. NCP should 

regularly consult with civil society groups and should conduct outreach to make 

the U.S. NCP more visible. 

• Regarding transparency, all major steps in the U.S. NCP process should be 

published on a public website and communicated to the parties involved; these 

include the receipt of a complaint for a specific instance, the completion of an 

assessment, the issuance of a final statement and any relevant recommendations, 

issuance of any monitoring reports, and any action of the Review Board. 

• Regarding accountability, this additionally requires that the U.S. NCP show 

indicia of independence, fairness, and effectiveness. 

– Regarding independence, we propose that the U.S. NCP be moved to a 

new independent office jointly reporting to the Bureau of Economic, 

Energy, and Business Affairs (“EEB”) and the Bureau of Democracy, 

Human Rights, and Labor (“DRL”). We propose that staff be 

independent, professional, and that the U.S. NCP compose the entirety of 

their work. 

– Regarding fairness, we propose that the U.S. NCP follow: (1) detailed 

rules of procedure that enable a process for all sides to a specific instance 

to voice their views to the U.S. NCP, (2) a timeline so that the U.S. NCP 

process is predictable, and (3) a commitment to issue a Final Statement in 

each case. Finally, fairness requires the creation of an independent 

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6 See, e.g., U.S. Department of State, Brochure: OECD Guidelines for Multinational Enterprises and the U.S. 

National Contact Point, available at http://www.state.gov/documents/organization/140823.pdf.

7 OECD Guidelines for Multinational Enterprises 33, 56-57 (2008), available at

http://www.oecd.org/dataoecd/56/36/1922428.pdf. 
4

Review Board to oversee the NCP, and the opportunity for parties to 

request Review if the rules of procedures are not followed. 

– Regarding effectiveness, the U.S. NCP’s Final Statement regarding 

specific instances should be provided to the parties to the dispute, the 

Review Board and relevant federal agencies. Monitoring reports 

regarding compliance with the OECD Guidelines should be an important 

feature of the mechanism. Lastly, for the U.S. NCP to be effective, it must 

be given sufficient budgetary resources to carry out its mission. 

Our specific comments below are designed to address the weaknesses in the current U.S. 

NCP system and to provide suggestions for bringing the U.S. NCP in line with these best 

practice principles. 

II. Specific Comments

The following specific comments fall into four issue areas: (A) Structure, Independence

and Oversight, (B) Procedures for Handling Specific Instance Complaints, (C) Monitoring, 

Reporting and Enforcement, and (D) Promotion and Outreach. The comments with regard to 

procedures follow the current U.S. NCP brochure regarding “What Happens Once a Request is 

Received by the NCP?”.

A. Structure, Independence and Oversight

With regard to structure, the U.S. NCP is currently located in EEB, a unit that reports to 

the Under Secretary for Economic, Energy and Agricultural Affairs in the U.S. Department of 

State. According to the U.S. NCP website, “the NCP is assisted by the State Department’s 

Bureau of Democracy, Human Rights, and Labor, as well as with other agencies, including the 

Departments of Labor, Commerce, Justice, Treasury, the Environmental Protection Agency, and 

the U.S. Trade Representative.”

8

 There is no description of how the U.S. NCP is assisted by 

these federal agencies, at what point in the process they have influence, and the result of this 

influence. 

As a first recommendation, in order for the U.S. NCP to better meet the principle of 

independence, the U.S. NCP should be an independent office within the Department of State 

that jointly reports to EEB and DRL. Both Bureaus have subject matter expertise in the type of 

issues that relate to the Guidelines. Situation of the NCP under their joint purview would send a 

message that the U.S. NCP is not simply a tool of U.S. economic interests (per the mission of 

EEB), but is truly a mechanism capable of promotion of the multi-issue Guidelines and is 

available for assistance with dispute resolution. For practical purposes, this may be most 

important for budgeting, though it is also important for the mechanism’s credibility and 

perception for stakeholders worldwide. 

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8 U.S. Department of State, U.S. National Contact Point for the OECD Guidelines for Multinational Enterprises, 

http://www.state.gov/e/eeb/ifd/oia/usncp/index.htm.
5

Proposed(Role(of(the(Review(

Board

• Confirm!that!any!rejected!

complaints!do!not!meet!basic!

criteria;

• Receive!copies!of!all!major!

reports;!

• If!requested,!review!Final!

Statements!and!respond!to!the!

U.S.!NCP!with!any!followCup!

issues;!

• Review!any!allegations!by!parties!

of!the!U.S.!NCP’s!nonCcompliance!

with!its!rules!of!procedure;!and

• Participate!in!the!regular!review!

of!the!U.S.!NCP.

United Nations Special Representative for Business and Human Rights John Ruggie has 

identified this conflict-of-interest risk with unitary agency NCPs. As a “solution[,]” he has noted 

the example of the Dutch NCP, which is governed by multi-stakeholder group.9 In the U.S. 

context, while locating the NCP externally may not be practical, the structure of the NCP should 

at least include reporting jointly to EEB and DRL, and having dedicated U.S. NCP staff 

(preferably two or more) appointed by both Bureaus to work only on U.S. NCP activities.10

In order to ensure the independence of U.S. NCP staff, 

and thereby the independence of the mechanism, the NCP 

should ensure that its staff have no conflict-of-interest with 

regard to the issues raised in complaints about specific instances 

of conduct.11 By assigning independent staff to the U.S. NCP 

(and not people otherwise in charge of promoting U.S. business 

interests abroad, as has been the case for the past decade), this 

will ensure that those responsible for providing governmentsponsored corporate benefits, for example, would not have any 

role at all. 

At the individual level, procedures should be required so 

that, for example, staff working on a specific instance complaint 

who own more than a de minimus amount of stock in or have 

family in a leadership position at an MNE that is the subject of a 

complaint should disclose that conflict and, where appropriate, 

be required to recuse themselves of work on that particular 

complaint. U.S. NCP staff should have at least some training in 

dispute-resolution. They should be hired based on their ability to comport with the highest 

standards of objectivity, ethics and professionalism.12

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9

 John Ruggie, Special Representative of the 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 26 (2008), available at 

http://www.reports-and-materials.org/Ruggie-report-7-Apr-2008.pdf. 

10 See e.g., Netherlands National Contact Point, Organization, http://www.oecdguidelines.nl/ncp/organisation/ (last 

visited Oct. 11, 2010) (3 full-time staff members); United Kingdom National Contact Point, Contact UK NCP, 

http://www.bis.gov.uk/policies/business-sectors/low-carbon-business-opportunities/sustainabledevelopment/corporate-responsibility/uk-ncp-oecd-guidelines/contact-us (2 permanent members). 

11 Methods to avoid staff conflict-of-interest are common in judicial and non-judicial accountability mechanisms. 

See e.g., Netherlands National Contact Point, Filing Complaints (procedure), para. 3,

http://www.oecdguidelines.nl/ncp/filing-complaints/ (“If there may be a conflict of interests or an appearance of 

such conflict, the NCP member concerned will waive his or her involvement in the procedure.”); European Bank for 

Reconstruction and Development, Project Complaint Mechanism Rules of Procedure, para. 51, available at

http://www.ebrd.com/downloads/integrity/pcmrules.pdf [hereinafter EBRD PCM]; International Finance 

Corporation, Compliance Advisor Ombudsman, Operational Guidelines, para. 1.3 and 4.3, available at 

http://www.cao-ombudsman.org/howwework/filecomplaint/documents/EnglishCAOGuidelines06.08.07Web.pdf

[hereinafter IFC CAO].

12 See, e.g., EBRD PCM, supra note 11 at para. 47; IFC CAO, supra note 11 at para. 1.3.
6

The U.S. NCP should be given budgetary resources sufficient to carry out the NCP’s 

mission, including budget for salaries, resources to conduct fact-finding and field visits, budget 

to engage external experts and mediators, and sufficient resources to conduct outreach.

With regard to oversight, the U.S. NCP should have a Review Board, made up of a 

government representative from the State Department’s Office of the Legal Advisor, and 

external stakeholders from business, labor, and public-interest advocacy groups.

13 The 

Review Board would receive copies of all major reports and be responsible for reviewing various 

stages of the process, including complaints about the U.S. NCP’s non-compliance with its rules 

of procedure. A detailed discussion of the Review Board’s proposed role is discussed in Section 

B, below. 

In addition, the Review Board should evaluate the U.S. 

NCP every three years to ensure that it is meeting its 

objectives with regard to addressing complaints and 

communication with the public about the Guidelines.

14

The currently underutilized U.S. NCP Inter-Agency 

Committee should be composed of representatives from the 

Environmental Protection Agency, and the Departments of 

Labor, Justice, Treasury, and Commerce.15 The Inter-Agency 

Committee would receive copies of all Final Statements and 

any enforcement recommendations based on findings of noncompliance.

B. Procedures for Handling Complaints

Requirements for Filing a Complaint

We applaud the U.S. NCP for publishing a brochure in 

April 2010 regarding how to file a complaint and the process that follows.16 We agree with the 

list of requirements in the section on “How to Request Assistance from the NCP[,]” but suggest 

that number 5 include the words “if possible.” It may be the case that communities in areas 

where OECD-based MNEs operate do not have the ability to interpret particular chapters or parts 

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13 These public interest advocacy groups should include international human rights, development and environmental 

organizations. For examples of other oversight committees with the power to review, see the United Kingdom 

National Contact Point, Opportunity to Review, http://www.bis.gov.uk/policies/business-sectors/low-carbonbusiness-opportunities/sustainable-development/corporate-responsibility/uk-ncp-oecd-guidelines/complaintsprocedures.

14 See, e.g., EBRD PCM, supra note 11 at para. 69 (mandating review of the Project Compliant Mechanism every 

three years).

15 Based on our informal survey of members of the current Inter-Agency Committee, it appears that they have had a 

very limited role in the U.S. NCP process of handling specific instances. 

16 U.S. Department of State, Brochure: OECD Guidelines for Multinational Enterprises and the U.S. National 

Contact Point, available at http://www.state.gov/documents/organization/140823.pdf.

Proposed(U.S.(NCP(Timeline

Initial!Receipt!of!Complaint!–

immediately!(5(days(maximum)

Initial!Assessment!Report!– 90(days

from!receipt!of!complaint

Mediation/Investigation!Period!–

unless!both!parties!agree!that!

productive!dialogue!continues,!no!

more!than!8(months,!culminating!in

Issuance!of!Final!Statement!–!within!

1(year!of!the!initial!submission!of!

the!complaint

Monitoring!Reports!–!every!6(

months(until!there!is!a!finding!of!

compliance!with!the!Guidelines!

and/or!recommendations!have!

been!implemented.!
7

of the Guidelines or may not have access to a copy of the Guidelines. Based on the principle of 

accessibility and in accordance with the requirements for filing complaints at IFI accountability 

mechanisms and other NCPs, we recommend that number 5 be discretionary.17 For similar 

reasons, the U.S. NCP rules of procedure should note that requests are permitted in major world 

languages.18

We note that the U.S. NCP should allow requestors to amend, update or supplement

complaints if new relevant information becomes available subsequent to filing. 

Confidentiality 

As a general comment, the default position of the U.S. NCP should be transparency, not 

secrecy. Regarding confidentiality of the complaint mentioned at the bottom of the “How to 

Request” section, we agree that the U.S. NCP should seek to “resolve specific instances in a 

transparent matter[,]” however, the last sentence should be clarified. “All parties are expected to 

respect the confidentiality of the proceedings” should be changed to: ‘To the extent the parties 

agree to proceed through a confidential dialogue, the U.S. NCP will respect that confidentiality.’ 

Furthermore, the section should state that ‘while anonymous complaints are not accepted, the 

requestor may request confidentiality and that confidentiality will be respected by the U.S. NCP.’ 

Confidentiality should not be a justification for failing to post major milestones in the process on 

the U.S. NCP website.19 To the extent reports must be redacted in part based on confidentiality 

requirements, un-redacted portions or summaries must be posted. 

Actions Upon Receipt of a Complaint

We agree with the first step under the heading “What Happens Once a Request is 

Received by the NCP?” that a “response is sent to the requestor to confirm receipt of the 

inquiry.” However, we request that this be a time-bound step; we suggest that the language be 

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17 See e.g., United Kingdom National Contact Point, UK National Contact Point (NCP) Procedures for Dealing with 

Complaints Brought Under the OECD Guidelines for Multinational Enterprises at 3.2.2, available at

http://www.bis.gov.uk/files/file53070.pdf; EBRD PCM, supra note 11 at para. 20 (a Complaint should include, 

where possible, the Relevant EBRD Policy that has allegedly been violated); The Inter-American Developmental 

Bank, Policy Establishing the Independent Consultation and Investigation Mechanism at para. 31, available at 

http://idbdocs.iadb.org/wsdocs/getdocument.aspx?docnum=35074768 (noting that a complaint need not follow any 

particular format); IFC CAO, supra note 11 at para. 2.2.

18 See EBRD PCM, supra note 11 at para. 6 (accepting complaints in any of the working languages of the Bank 

including, but not limited to English, French, German, or Russian); The Inter-American Developmental Bank,

Policy Establishing the Independent Consultation and Investigation Mechanism at para. 32, available at 

http://idbdocs.iadb.org/wsdocs/getdocument.aspx?docnum=35074768 (Feb. 2010) (accepting Spanish, English, 

Portuguese and French. Requests will be processed if received in other languages, although additional time for 

processing and translations may be necessary).

19See, e.g., EBRD PCM, supra note 11 at para. 60; United Kingdom National Contact Point, UK national contact 

point (NCP) procedures for dealing with complaints brought under the OECD guidelines for multinational 

enterprises at 2.5, available at http://www.bis.gov.uk/files/file53070.pdf (Sept. 2009); IFC CAO, supra note 11 at 

para. 1.5 and 3.4.
8

changed to state that ‘a response to the requestor confirming receipt of the inquiry is sent 

immediately, and in no case later than five days after receipt of the inquiry.’ 

 After confirmation of receipt and notification given to the MNE about the complaint, in 

order to ensure transparency, the U.S. NCP should publicly post the fact of the submission of the 

complaint on a docket on its website.20 

If the U.S. NCP determines immediately after registering the complaint that is does not

meet basic criteria (i.e. does not pertain to a dispute about MNE compliance with the Guidelines 

involving the U.S. as a home or host country), the U.S. NCP should send notice to the Review 

Board who will have five days to approve the finding on a noobjection basis. If there are no objections at the end of five days, 

the U.S. NCP will mark the case as closed, posting the decision 

and reasoning on the U.S. NCP website and notifying the parties 

and the Review Board. If there are objections to closing the case 

by any member of the Review Board, they may request that the 

U.S. NCP consider additional information or further explain the 

reasoning for the decision to close the case. A record of the 

Review Board’s request and the NCP’s response should be posted 

on the NCP website. 

If the U.S. NCP determines that the complaint does meet 

basic criteria, either after an objection from the Review Board or 

in the first instance, where the current brochures states that other 

“relevant NCPs” are “consulted”, we recommend that this be 

clarified to state that other relevant NCPs are informed of the 

complaint and asked for relevant information. The Review Board 

and all relevant parties should be advised of the decision that a 

complaint meets basic criteria for proceeding to an initial 

assessment. At that point, the MNE and other relevant NCPs 

should be given an opportunity to respond to the issues raised in 

the complaint within 30 days.

Initial Assessment Period

Upon confirmation that the complaint meets basic criteria, the U.S. NCP should begin the 

“initial assessment” as currently described under the fourth bullet point under the “What 

Happens” heading. We recommend that the legal term of art “good offices” be replaced 

throughout the document with “services.”

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20 See e.g., The Inter-American Developmental Bank, Policy Establishing the Independent Consultation and 

Investigation Mechanism at para. 31, available at 

http://idbdocs.iadb.org/wsdocs/getdocument.aspx?docnum=35074768 (Feb. 2010); IFC CAO, supra note 11 at para. 

2.3.2; See also Netherlands National Contact Point, Filing Complaints (procedure) at 4.3, available at

http://www.oecdguidelines.nl/ncp/filing-complaints/.

The(Docket(Published(on(

the(U.S.(NCP(Website(

Should(Include(Records(of:

• all!initial!complaints!filed

• eligibility!determinations

• Initial!Assessment!Reports!

• Final!Statements!issued

• Monitoring!Reports

• record!of!any!requests!for!

Review

• Review!Reports!by!the!

Review!Board

• all!agreed!upon!timeline!

extensions

• any!requests!by!the!Review!

Board!and!the!NCP!response!

to!these!requests
9

The current criteria for consideration state that the U.S. NCP will consider how “similar 

issues have been, or are being, treated in other domestic or international proceedings.” We urge 

the U.S. NCP to elaborate by stating the specific procedure it intends to follow for handling a 

case when there are parallel legal proceedings. We recommend adopting the policy of the United 

Kingdom NCP, which will suspend a complaint “only where it is satisfied that it is necessary in 

order to avoid serious prejudice to a party to parallel proceedings and appropriate in all the 

circumstances.”21 Most importantly, the existence of parallel proceedings should not of itself 

cause a suspension of the U.S. NCP’s involvement in any dispute. In cases where the U.S. 

NCP does feel that offering its services would prejudice criminal proceedings, the NCP should 

provide a clear rationale, which can be reviewed by the Review Board as part of a Final 

Statement.

22

The Initial Assessment Report should conclude with a determination of whether the 

parties to the dispute are willing to engage in mediation, and if so, the report should include 

designation of an external mediator from a pre-determined list of approved mediators.23 If the 

parties are not mutually willing to engage in mediation, the Initial Assessment Report should so 

state (including the reason behind the determination) and the U.S. NCP should begin drafting a 

Final Statement regarding whether there are substantiated violations of the OECD Guidelines 

with recommendations as to how those violations should be addressed. 

The U.S. NCP should use the information provided in the complaint, information from 

direct follow-up communications with the requestors (including in-person communications24), 

and the responses, if any, from the MNE and other relevant NCPs, to complete the Initial 

Assessment Report within 90 days. At the conclusion of the 90-day initial assessment period, 

the U.S. NCP should provide a copy of the Initial Assessment Report to the parties, with a copy 

to the Review Board. The U.S. NCP docket on its public website should note the date of 

completion of the Initial Assessment Report.

Mediation

If a mediator from the U.S. NCP’s pre-approved roster25 has been appointed at the 

culmination of the initial assessment, the mediation should begin with both parties agreeing to 

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21 United Kingdom National Contact Point, Approach of the UK NCP to Specific Instances in Which There are 

Parallel Proceedings (2009), available at http://www.bis.gov.uk/files/file53069.pdf.

22 This is position is supported by both the UK NCP and the European Bank for reconstruction. United Kingdom 

National Contact Point, Approach of the UK NCP to Specific Instances in Which There are Parallel Proceedings, 

(2009), available at http://www.bis.gov.uk/files/file53069.pdf; EBRD PCM, supra note 11 at para. 16.

23 See e.g., EBRD PCM, supra note 11 at para. 48.

24 In our experience with other accountability mechanisms, the act of meeting with requestors in person can be the 

single most important step in the process. Obtaining recognition that they have a legitimate grievance is often one 

of the main reasons for seeking redress. 

25 The concept of a roster of experts is used by the World Bank Group’s Compliance Advisor/Ombudsman, the 

EBRD’s Project Complaint Mechanism, and the Inter-American Development Bank’s Independent Consultation and 

Investigation Mechanism, among others. 
10

the methods, processes and time frame for the mediation. The parties and the mediator should 

complete the mediation process in no more than eight months. The time could be extended for 

set periods if the U.S. NCP verifies that both the requestor and the MNE agree that productive 

dialogue is continuing. All extensions of time shall be noted on the U.S. NCP website. 

At the conclusion of the eight-month mediation period, the mediator should deliver a 

Mediation Report to the U.S. NCP, with copies to the parties and the Review Board. The 

Mediation Report should describe the facts of the dispute, the process used in the mediation, the 

position of the parties, and the agreement reached or a description of how and why the mediation 

concluded if no agreement was reached. 

Fact-finding 

Upon receipt of the Mediation Report, or upon completion of the Initial Assessment 

Report if there has been no mediation, the U.S. NCP should review the facts in the Mediation 

Report (if any), and independently verify allegations related to the MNE’s violations of the 

OECD Guidelines. Fact-finding could include site visits, interviews, document review, or any 

other relevant methods. 

Issuance of a Final Statement

With the exception of any approved extensions of time for continuing dialogue, the U.S. 

NCP should issue a Final Statement no later than one year after the receipt of the complaint.26 

The Final Statement must include:

• A summary of the mediation process, if any (including whether agreement was 

reached or not); 

• A finding of whether there is non-compliance with the OECD Guidelines, 

including the investigation method used, facts found, and reasoning behind 

conclusions; and

• Recommendations for how compliance with the OECD Guidelines should be 

achieved. 

The U.S. NCP should submit the Final Statement to the parties and the Review Board.

Review of a Final Statement

The U.S. NCP should allow both parties the opportunity to respond to the Final Statement 

within 30 days and request a review by the Review Board if needed. The Final Statement, along 

with any requests for review, should then be posted on the U.S. NCP website at the end of the 

30-day period. 

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26 The requirement for issuance of a Final Statement is found in the Implementation Procedures of the OECD 

Guidelines at page 34, para. 3, available at http://www.oecd.org/dataoecd/56/36/1922428.pdf.
11

To the extent there are no requests for review after 30 days, no findings of violations of 

the Guidelines, and no recommendations, the U.S. NCP’s posting of the Final Statement should 

designate the case as closed. If there are violations and/or recommendations to be implemented, 

the case should be left open so that monitoring begins.

If a review is requested within the 30-day period, the Review Board shall meet to discuss 

whether to: (1) ask the U.S. NCP for additional information supporting findings of fact or 

recommendations, (2) request that recommendations be elaborated upon or further justified, or 

(3) take no action. The Review Board must submit the Review Report to the U.S. NCP within 

30 days of the request for review. The Review Report should be immediately posted on the U.S. 

NCP website. 

 The U.S. NCP should respond to the Review Report in writing within 30 days. The 

response should be immediately posted on the U.S. NCP website. If after the U.S. NCP’s 

response to the Review Report there are no findings of violations of the Guidelines, and no 

recommendations, the U.S. NCP should designate the case as closed. If there are violations 

and/or recommendations to be implemented, the case should be left open so that monitoring 

begins.

If at any point in the process the parties believe that the U.S. NCP has failed to follow 

its own rules of procedure, the Review Board should permit the parties to request review. The 

Review Board should respond accordingly within a reasonable time period, and within no 

more than 30 days. The Review Board should be able to engage independent experts for advice 

as needed. 

C. Monitoring, Reporting and Enforcement

If the Final Statement identifies continuing non-compliance with the OECD Guidelines, 

the U.S. NCP should refer the Final Statement to appropriate entities, including agencies with 

enforcement power, such as the Department of Justice (for issues pertaining to violations of law), 

and also the Export-Import Bank of the U.S. and the Overseas Private Investment Corporation 

(to factor into their due diligence if the MNE at issue seeks their support). 

For cases that remain open after issuance of Final Statements, the U.S. NCP should issue

bi-annual Monitoring Reports on MNE’s compliance with the NCP’s recommendations 

regarding compliance with the Guidelines. Monitoring Reports should be based on any progress 

reports submitted by the MNE and the requestor, as well as independent factual verification 

through appropriate means.

27 Monitoring Reports should be published on the U.S. NCP website 

!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

27 Accord United Kingdom National Contact Point Brochure, available at http://www.bis.gov.uk/files/file53566.pdf

(“Where the Final Statement includes recommendations, it will specify a date by which both parties are asked to 

update the UK NCP on the multinational enterprise’s progress towards meeting these recommendations. The UK 

NCP will then publish a further statement reflecting the parties’ responses.”); EBRD PCM, supra note 11 at para. 44 

(“The PCM Officer will issue Compliance Review Monitoring Reports at least biannually or until the PCM Officer 

determines that the implementation issues are concluded. In the preparation of each report, the PCM Officer will 

consult with the Relevant Parties as appropriate.”).
12

and given to the parties and the Review Board. Bi-annual Monitoring Reports should be issued 

and published until the U.S. NCP determines that all compliance issues with the OECD 

Guidelines are resolved and/or recommendations have been implemented, at which point, the 

case should be designated as closed. 

D. Promotion and Outreach 

The U.S. NCP should ensure that information about the OECD Guidelines and about the 

U.S. NCP’s role in addressing issues arising under the Guidelines is publicly available. The U.S. 

NCP should provide greater detail in the informational brochure currently on its website, and 

should make this brochure available at outreach events around the world. The brochure should 

also be distributed through NGO and union networks in the developing world and through U.S. 

business networks. The U.S. NCP should also maintain an up-to-date website with all relevant 

information about current and past cases. It is essential that the U.S. NCP should maintain open 

communications lines and provide clear information in languages and formats that maximize 

access to all parties.

In an effort to take a proactive role, the U.S. NCP should consider partnering with IFI 

accountability mechanisms when they conduct joint workshops around the world. The U.S. NCP 

should set specific goals regarding outreach (for example, attendance at 2 major international 

multi-stakeholder events per year and 4 major domestic events). Separately, the U.S. NCP 

should hold regular consultations, at least annually, with stakeholder groups including worker 

organizations and NGOs. Stakeholders should be given the opportunity to comment on the U.S. 

NCP process and on its promotional activities.

We believe that these changes to the U.S. NCP will facilitate better outcomes for all 

parties involved and will help the U.S. NCP operate in accordance with the “core criteria of 

visibility, accessibility, transparency and accountability” which the OECD Guidelines require of 

all NCPs.28

We appreciate the opportunity to comment on the review of the U.S. National Contact 

Point and we look forward continuing engagement with the State Department on this important 

endeavor. 

Sincerely, 

 Natalie Bridgeman Fields, Esq.

Executive Director

Accountability Counsel

natalie@accountabilitycounsel.org

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28 OECD, OECD Guidelines for Multinational Enterprises 33, 56-57 (2008), available at

http://www.oecd.org/dataoecd/56/36/1922428.pdf.