International Informal Law-Making and Multi-Level Governance Intermediaries: the Case of National Contact Points Under the OECD Guidelines for Multinational Enterprises and Dispute Settlement

Abstract

The OECD Guidelines for Multinational Enterprises (Guidelines) are a set of non-binding recommendations addressed to companies which focus on issues such as labor rights, environmental protection, consumer protection and the fight against corruption. The Guidelines were originally adopted by the OECD Ministerial Council in 1976, as part of the Declaration on International Investment and Multinational Enterprises. The text of the Guidelines has been reviewed on several occasions since then (1979, 1984, 1991, 2000 and 2011). Today, all 34 OECD Member States, and an additional 11 countries, have subscribed to them. This paper discusses the Guidelines and their enforcement via National Contact Points (NCPs) as a case study of a particular type of rule intermediary that establishes a dispute resolution mechanism to enforce rules and which is especially interesting in the context of multi-level governance. It aims to contribute to the regulatory governance debate by focusing on the role of a specific type of rule intermediary (dispute settlement based rule intermediary) in rule interpretation and enforcement. Two hypotheses on the role of these rule intermediaries are explored using the case of the NCPs within the framework of the Guidelines. First, the paper submits that the actions of rule intermediaries might have an effect on the nature of the rules, i.e. affect the binding/non-binding, voluntary/compulsory and legal/non-legal character of the rules. Secondly, it reflects on the potential influence of rule intermediaries on the content of the rules, in the sense that rule intermediaries in some way determine the content of the rules through their application and interpretation, as is the case in judicial review mechanisms.