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: Law at the End of the DayOECD Guidelines for Multinational Enterprises ? What every international lawyer needs to know about possible upcoming changes
Are the OECD Guidelines for Multinational Enterprises still relevant to today?s global economy? Do they provide adequate guidance to companies? Does their complaint process work? What are the proposals for their reform? This session will attempt to answer these and other questions.
The Guidelines were last revised in 2001, and cover a wide range of business conduct in such areas as disclosure, employment, environment, anti-corruption, consumer interest, science and technology, competition and taxation. They are now being scrutinised for changes in response to concerns that they are outdated and don?t reflect the concerns of the current global economy in a variety of areas, including human rights, supply chains, distance selling, climate change, and anti-corruption, among others. In addition, National Contact Points (NCPs) ? appointed in each OECD country to resolve allegations that companies have violated the Guidelines ? have been criticised as underutilised and ineffective.
An IBA Working Group has submitted comments both to the UK NCP and to the OECD to revise the Guidelines and improve the NCP process. Other groups, including business, labour, and civil society, have filed their own comments.
Summary Draft Outline
October 5, 2010The presentation looks to the systemic effects of recent U.K. National Contact Point decisions (with an eye to the project of OECD revisions of the Guidelines for Multinationals). I will be considering the way in which the emerging actions of the NCPs contribute to the creation of a coherent jurisprudence with the assumption that Ed may be looking more closely to the substantive issues that are touched on by the Guidelines and the cases.
I. Introduction
A. Brief overview of NCP system within context of GuidelinesB. Thesis?jurisprudence suggests the construction of a coherent governance framework that may serve as the foundation for customary principles of behaviorC. Consequence: lawyers are now facing the emergence of multiple sources of law on the basis of which company transactions and relationships can be challenged simultaneously in multiple jurisdictions each with potentially distinct soft and hard law standards.
D. This will require lawyers to recognize their role in counseling clients with respect to corporate obligations under two distinct governance frameworks--those of the domestic legal orders of home and host states, and those of transnational governance orders that can affect the functional operation of corporate entities.II. The cases and their respective contributions.
B. Multiple Law Sources (Polycentricity)
?Vedanta
?Khanewal
?Sewri
?T&G Peugeot
?Rahim Yar KhanC. Appeals
?BTC PipelineD. Inducement to Settle, Current and Prior Procedure
?Anglo American
?G4S
III. Drawing the Pieces TogetherA. Governance themes emergingIV. Looking Foreword1. Polycentricity and standingB. The Problem of Sources of Givernance
2. Supply chain responsibility
3. Direct application of human rights instruments (entities as subjects of international law)1. External sources for internal governanceC. Institutional Elements
2. Ruggie Principles
3. Norway SWF and other CSR motivated institutional investors.1. Role of the NCP
2. Role of Civil Society Stakeholders
3. Transparency, mediation and dispute Resolution
4. Role of investment community
?Sovereign Wealth Funds as indirect governance element
?Institutional investors and investment media as consensus shapersA. Guidelines Revisions?Make it easier to invoke procedure; issue of asymmetric availability among OECD membersB. NGO interventions?implications of broadened standingC. Disclosure implications
?Role in developing common standards within NCP system?risk management and implications for financial disclosureD. Strategic implications: uses as part of a multi-jurisdictional multi-forum strategy (courts, NCPs).?Suggest the possibilities of a coordinated litigation-mediation-conflict strategy by non-shareholder stakeholders
?Vedanta: use of NCP procedure to put pressure on host state;
?Sewri, Khanewal: use of NCP procedure to put pressure to settle beyond requirements of host state law requirements.
V. ConclusionA. Coherence or wishful thinking?B. Coupling with other governance norms?interlocking systems or communication?
C. Forms of dispute resolution?mediation and its transparency implications. D. Role for Lawyers changing and broadening from formal law to governance and its implications for business relationships and liability exposure.
The PowerPoint presentation may be accessed here. For further reading, see, e.g.,
1. Backer, Larry Catá, Rights and Accountability in Development (Raid) V Das Air and Global Witness V Afrimex: Small Steps Toward an Autonomous Transnational Legal System for the Regulation of Multinational Corporations, 10(1) Melbourne Journal of International Law 258 (2009);
2. Backer, Larry Catá, On the Evolution of the United Nations? 'Protect-Respect-Remedy' Project: The State, the Corporation and Human Rights in a Global Governance Context (June 3, 2010). Santa Clara Journal of International Law, Vol. 9, No.1, 2010.
3. Backer, Larry Catá, Private Actors and Public Governance Beyond the State: The Multinational Corporation, the Financial Stability Board and the Global Governance Order (August 13, 2010).
Full post as published by Law at the End of the Day on October 09, 2010 (boomark / email).
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